CULTURAL CONVERGENCE: INTEREST
CONVERGENCE THEORY MEETS THE
CULTURAL DEFENSE
Cynthia Lee*
Defendants who successfully introduce cultural evidence in their defense have one
thing in common⎯the cultural norms underlying their claims are either similar to
or complement American cultural norms, including retrograde racist and sexist
norms. This Article argues that cultural convergence is one way to understand
these results. Cultural convergence is the idea that the cultural defense claims of
minority and immigrant defendants are more likely to receive accommodation
when there is convergence between their cultural norms and American cultural
norms.
*
Cynthia Lee is a Professor of Law at the George Washington University Law
School. I want to thank my colleague W. Burlette Carter for conversations that led to this
piece. I also thank Christopher Bracey, Donald Braman, Richard Delgado, Natalya Domina,
Roger Fairfax, Dan Kahan, Nancy Kim, Fred Lawrence, and Kevin Washburn, who read
earlier drafts of this Article and provided excellent feedback. A big thanks to the
participants at the Third Annual Criminal Justice Roundtable at Yale Law School in April
2007 who provided useful comments, including Rachel Barkow, Guyora Binder, Donald
Braman, Paul Butler, Frank Rudy Cooper, Tino Cuellar, Allison Danner, Bernard Harcourt,
Dan Kahan, Maximo Langer, Ian Haney López, Tracey Meares, Ken Simons, David
Sklansky, Carol Steiker, Kate Stith, Bill Stuntz, and Ronald Sullivan. I also thank Maggie
Chon, Julian Cook, Marjorie Florestal, Lolita Buckner Innis, Adele Morrison, Reggie Oh,
Radha Pathak, Sean Scott, and Frank Valdes for extremely helpful feedback when I
presented this paper at the 2006 Western Law Professors of Color Conference in San Diego,
California in April 2006. I also appreciate the comments made by Elaine Chiu, Rashmi
Goel, Jancy Hoeffel, Kay Levine, Kenneth Nunn, and Linda Friedman Ramirez, at the
ABA-sponsored symposium on Culture and Crime held at the University of Florida Levin
College of Law on April 2, 2005. I thank Peter Blum, Atiba Ellis, Steven Jamar, Michael
Newsom, and Josephine Ross for feedback when I presented this paper at Howard Law
School in the Fall of 2006. Cynthia Brougher, Phil Cardinale, Peter Feldman, and
Hans-Christian Latta provided excellent research assistance. Parts of this Article are adapted
with permission from CYNTHIA LEE, MURDER AND THE REASONABLE MAN: PASSION AND
FEAR IN THE CRIMINAL COURTROOM (2003).
912
ARIZONA LAW REVIEW
[VOL. 49:911
Introduction.........................................................................................................912
Part I. The “Cultural Defense”............................................................................915
Part II. Interest Convergence Theory..................................................................921
A. Interest Convergence as Explanation.....................................................925
1. Supreme Court Cases .....................................................................925
a. Hernandez v. Texas....................................................................925
b. Plyler v. Doe..............................................................................927
c. Grutter v. Bollinger ...................................................................928
2. Legislative Enactments and State Court Trends.............................931
B. Interest Convergence as a Tool of Strategy or Prediction......................933
1. Workplace Reform .........................................................................933
2. Educational Reform........................................................................935
3. Political Reform .............................................................................936
4. Other Reform..................................................................................938
Part III. Cultural Convergence Theory................................................................939
A. Asian Immigrant Men Who Kill Their Unfaithful Asian Immigrant
Wives .................................................................................................941
B. Asian Immigrant Women Who Kill Their Children in Response to
Spousal Infidelity...............................................................................951
C. Hmong Men Claiming “Marriage by Capture”......................................954
D. Black Men Who Successfully Argue “Black Rage”..............................956
Conclusion ..........................................................................................................958
INTRODUCTION
Much has been written about the so-called “cultural defense”—the
proffering of cultural evidence by a criminal defendant seeking to mitigate a
charge or sentence.1 Many scholars support the admission of this kind of evidence,
but urge its limitation to negate the mens rea.2 Others take the position that the
1.
The term is somewhat misleading as there is no official “cultural defense”
per se. The term is used to refer to a criminal defendant’s use of cultural evidence to support
a traditional criminal defense, to mitigate a charge or sentence, or to support a plea bargain.
2.
See, e.g., Nancy S. Kim, Blameworthiness, Intent, and Cultural Dissonance:
The Unequal Treatment of Cultural Defense Defendants, 17 U. FLA. J.L. & PUB. POL’Y 199,
201 (2006) [hereinafter Kim, Blameworthiness, Intent, and Cultural Dissonance]; Nancy S.
Kim, The Cultural Defense and the Problem of Cultural Preemption: A Framework for
2007]
CULTURAL CONVERGENCE
913
admission of cultural evidence violates the principle of equal protection by
favoring immigrant and minority defendants over non-immigrant, non-minority
defendants, and therefore should be sharply circumscribed.3 Recently, a few legal
scholars have issued calls for recognition of an official cultural defense.4
In this Article, I neither defend nor criticize the practice of using culture
in the criminal courtroom.5 Rather, I seek to illuminate why some uses of it seem
more successful than others. Generally speaking, immigrants and minority
defendants who seek to proffer cultural evidence in their defense do not succeed.
Either the judge deems such evidence irrelevant and denies its admission, or the
jury is unpersuaded that the defendant’s cultural background should be grounds for
leniency. An extensive review of the literature6 suggests that immigrant and
Analysis, 27 N.M. L. REV. 101, 115 (1997) [hereinafter Kim, The Cultural Defense and the
Problem of Cultural Preemption]; Kay L. Levine, Negotiating the Boundaries of Crime and
Culture: A Sociolegal Perspective on Cultural Defense Strategies, 28 LAW & SOC. INQUIRY
39, 39 (2003).
3.
See, e.g., Doriane Lambelet Coleman, Individualizing Justice Through
Multiculturalism: The Liberals’ Dilemma, 96 COLUM. L. REV. 1093, 1097 (1996); Valerie
L. Sacks, An Indefensible Defense: On the Misuse of Culture in Criminal Law, 13 ARIZ. J.
INT’L & COMP. L. 523, 524–25 (1996); Julia P. Sams, Note, The Availability of the
“Cultural Defense” as an Excuse for Criminal Behavior, 16 GA. J. INT’L & COMP. L. 335,
351–52 (1986). But cf. Leti Volpp, Talking “Culture”: Gender, Race, Nation, and the
Politics of Multiculturalism, 96 COLUM. L. REV. 1573, 1612–13 (1996) (responding to
Coleman).
4.
See, e.g., ALISON DUNDES RENTELN, THE CULTURAL DEFENSE (2004)
(arguing for the establishment of an official cultural defense which would act as a partial
excuse); Elaine M. Chiu, Culture as Justification, Not Excuse, 43 AM. CRIM. L. REV. 1317
(2006) (arguing for recognition of culture as a justification, rather than an excuse).
5.
I am generally in favor of giving criminal defendants wide latitude to present
relevant evidence in their defense, including cultural evidence. Because the presentation of
such evidence carries the risk of reinforcing negative stereotypes about a given racial or
ethnic group, I suggest that prosecutors be prepared to counter negative stereotypes with
expert witnesses of their own. I am thus in agreement with Holly Maguigan, who argues the
following:
[T]he goal of committing the criminal justice system to the effective
prosecution of family violence offenses should be accomplished, not by
limiting the rights of defendants to present cultural information to juries
and judges, but by imposing on prosecutors the obligation to educate
those juries and judges so that dispositions do not reflect acceptance of a
stereotypical view of the cultural legitimacy of male dominance.
Holly Maguigan, Cultural Evidence and Male Violence: Are Feminist and Multiculturalist
Reformers on a Collision Course in Criminal Courts?, 70 N.Y.U. L. REV. 36, 43 (1995).
6.
RENTELN, supra note 4; Lama Abu-Odeh, Comparatively Speaking: The
“Honor” of the “East” and the “Passion” of the “West,” 1997 UTAH L. REV. 287 (1997);
Daina C. Chiu, The Cultural Defense: Beyond Exclusion, Assimilation, and Guilty
Liberalism, 82 CAL. L. REV. 1053 (1994) [hereinafter Chiu, The Cultural Defense]; Chiu,
supra note 4; Elaine M. Chiu, Culture in Our Midst, 17 U. FLA. J. L. & PUB. POL’Y 231
(2006) [hereinafter Chiu, Culture in Our Midst]; Carolyn Choi, Application of a Cultural
Defense in Criminal Proceedings, 8 UCLA PAC. BASIN L.J. 80 (1990); Doriane Lambelet
Coleman, Culture, Cloaked in Mens Rea, 100 S. ATL. Q. 981 (2001) [hereinafter Coleman,
Culture, Cloaked in Mens Rea]; Coleman, supra note 3; Rashmi Goel, Can I Call Kimura
914
ARIZONA LAW REVIEW
[VOL. 49:911
minority defendants who successfully introduce cultural evidence in their defense
have one thing in common: the cultural norms underlying their defense are either
similar to or coalesce with those of the dominant majority. Borrowing from
Derrick Bell’s interest convergence theory,7 I argue that cultural convergence is
one way to explain these results. Cultural convergence is the idea that the interests
of minority and immigrant criminal defendants in obtaining leniency seem most
likely to receive accommodation when there is convergence between dominant
majority cultural norms and the cultural norms relied upon by the immigrant or
minority defendant.
Crazy? Ethical Tensions in the Cultural Defense, 3 SEATTLE J. FOR SOC. JUST. 443 (2004);
Kristen L. Holmquist, Cultural Defense or False Stereotype? What Happens When Latina
Defendants Collide With the Federal Sentencing Guidelines, 12 BERKELEY WOMEN’S L.J.
45 (1997); Kim, Blameworthiness, Intent, and Cultural Dissonance, supra note 2; Kim, The
Cultural Defense and the Problem of Cultural Preemption, supra note 2; Anh T. Lam,
Culture as a Defense: Preventing Judicial Bias Against Asians and Pacific Islanders, 1
ASIAN AM. PAC. ISLANDS L.J. 49 (1993); Levine, supra note 2; Choua Ly, The Conflict
Between Law and Culture: The Case of the Hmong in America, 2 WIS. L. REV. 471 (2001);
Maguigan, supra note 5; Alison Matsumoto, A Place for Consideration of Culture in the
American Criminal Justice System: Japanese Law and the Kimura Case, 4 J. INT’L L. &
PRAC. 507 (1995); Deirdre Evans-Pritchard & Alison Dundes Renteln, The Interpretation
and Distortion of Culture: A Hmong “Marriage By Capture” Case in Fresno, California, 4
S. CAL. INTERDISC. L.J. 1 (1995); Alison Dundes Renteln, A Justification of the Cultural
Defense as Partial Excuse, 2 S. CAL. REV. L. & WOMEN’S STUD. 437 (1993) [hereinafter
Renteln, A Justification of the Cultural Defense as Partial Excuse]; Alison Dundes Renteln,
Raising Cultural Defenses, in CULTURAL ISSUES IN CRIMINAL DEFENSE (2001); Nilda
Rimonte, A Question of Culture: Cultural Approval of Violence Against Women in the
Pacific-Asian Community and the Cultural Defense, 43 STAN. L. REV. 1311 (1991); Sacks,
supra note 3; Malek-Mithra Sheybani, Cultural Defense: One Person’s Culture is Another’s
Crime, 9 LOY. L.A. INT’L & COMP. L. REV. 751 (1987); James J. Sing, Culture as Sameness:
Toward a Synthetic View of Provocation and Culture in the Criminal Law, 108 YALE L.J.
1845 (1999); Melissa Spatz, A “Lesser” Crime: A Comparative Study of Legal Defenses for
Men Who Kill Their Wives, 24 COLUM. J.L. & SOC. PROBS. 597 (1991); Deborah Boulette
Taylor, Paying Attention to the Little Man Behind the Curtain: Destroying the Myth of the
Liberal’s Dilemma, 50 ME. L. REV. 445 (1998); Catherine Trevison, Changing Sexual
Assault Law and the Hmong, 27 IND. L. REV. 393 (1993); Leti Volpp, Blaming Culture for
Bad Behavior, 12 YALE J.L. & HUMAN. 89 (Winter 2000) [hereinafter Volpp, Blaming
Culture for Bad Behavior]; Leti Volpp, (Mis)Identifying Culture: Asian Women and the
“Cultural Defense,” 17 HARV. WOMEN’S L.J. 57 (1994) [hereinafter Volpp,
(Mis)Identifying Culture]; Volpp, supra note 3; Nancy A. Wanderer & Catherine A.
Connors, Kargar and the Existing Framework for a Cultural Defense, 47 BUFF. L. REV. 829
(1999); Deborah Woo, The People v. Fumiko Kimura: But Which People?, 17 INT’L J.
SOCIOL. L. 403 (1989); Alice J. Gallin, Note, The Cultural Defense: Undermining the
Policies Against Domestic Violence, 35 B.C. L. REV. 723 (1994); Nicole A. King,
Comment, The Role Of Culture In Psychology: A Look at Mental Illness and the “Cultural
Defense,” 7 TULSA J. COMP. & INT’L L. 199, 223–24 (1999); Note, The Cultural Defense in
the Criminal Law, 99 HARV. L. REV. 1293 (1986); Sams, supra note 3; Spencer Sherman,
When Cultures Collide, CAL. LAW., Jan. 1986, at 33.
7.
Interest convergence, according to NYU law professor Derrick Bell, is the
idea that “[t]he interest of blacks in achieving racial equality will be accommodated only
when it converges with the interests of whites.” Derrick A. Bell, Jr., Brown v. Board of
Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518, 523 (1980).
2007]
CULTURAL CONVERGENCE
915
This Article proceeds in three parts. In Part I, I present an overview of the
major legal issues surrounding the use of cultural evidence in the criminal
courtroom. Part II provides a comprehensive taxonomy of the ways Bell’s interest
convergence theory has found application in scholarship on a variety of subjects
from reparations to pension reform. In Part III, I illustrate how cultural
convergence can help explain the successful use of culture in the criminal courts.
Three types of cases in which cultural defense arguments seem to be the most
successful support my thesis: (1) Asian immigrant men who kill their unfaithful
Asian immigrant wives and claim that they acted reasonably within the dictates of
their culture; (2) Asian immigrant women who kill their children and claim they
were attempting to commit parent–child suicide upon learning of their husband’s
infidelity; and (3) Hmong men charged with rape who claim they were engaging in
the Hmong custom of marriage by capture. Cultural convergence is also evident in
the rare case in which a Black man successfully asserts a deviance defense like
“Black Rage” or “mob contagion.”
I. THE “CULTURAL DEFENSE”
Although the term “cultural defense” is frequently used in academic
circles and by the bench and bar, no official body has recognized such a defense.
Rather, the term “cultural defense” refers to the introduction of cultural evidence
by immigrant and/or racial minority defendants seeking to refute or mitigate
criminal charges. Defendants may offer cultural evidence to show that they lacked
the mental state required for commission of the charged offense8 or to bolster a
traditional criminal law defense, such as self-defense,9 insanity10 or provocation.11
8.
In State v. Haque, 726 A.2d 205, 207 (Me. 1999), for example, the defendant
unsuccessfully attempted to proffer evidence that his traditional Muslim Indian upbringing
strongly influenced his perception of his relationship with the victim and how he reacted
when she terminated the relationship, thus showing that he lacked the requisite mens rea for
murder.
9.
In State v. Wanrow, 538 P.2d 849, 853 (Wash. Ct. App. 1975), defense
attorneys representing an Indian woman charged with second-degree murder unsuccessfully
attempted to introduce expert testimony relating to the defendant’s Indian culture to
demonstrate that “an Indian, confronted by an older person attempting to perform an
unnatural sex act on a young child, would undergo a more traumatic emotional experience
than a member of the Anglo-Saxon culture because of the highly respected position an older
person possesses in the Indian culture.” In Ha v. State, 892 P.2d 184, 195 (Alaska Ct. App.
1995), a Vietnamese male defendant argued that when he fatally shot the victim (another
Vietnamese man) in the back, he was acting in self-defense because Vietnamese culture
teaches that police are corrupt and people have to take the law into their own hands. See
also Renteln, A Justification of the Cultural Defense as Partial Excuse, supra note 6, at
454–56 (discussing the Patrick “Hooty” Croy case, where defense attorney Tony Serra
successfully argued that given his Native American background, Croy acted reasonably in
self-defense when he fatally shot a white police officer).
10.
In People v. Metallides, Case No. 73-5270 (Fla. Cir. Ct. 1974), the defense
attorney successfully used a temporary insanity argument based on the defendant’s Greek
culture, arguing that under the law of the old country, one does not wait for the police if
one’s daughter has been raped. See also Renteln, A Justification of the Cultural Defense as
Partial Excuse, supra note 6, at 464.
916
ARIZONA LAW REVIEW
[VOL. 49:911
They may also offer cultural evidence in support of a plea bargain12 or lenient
sentence.13
The term “culture” has been defined in many ways.14 A standard
definition of culture is that it consists of “[a] set of rules or standards shared by
members of a society which, when acted upon by the members, produce behavior
that falls within a range of variance the members consider proper and
acceptable.”15 This standard definition fails to recognize that “culture is
experienced differently by different people within a particular community, for
example, along lines of age, gender, class, race, or sexual orientation.”16 Moreover,
as Leti Volpp has often pointed out, “[c]ulture is not some monolithic, fixed, and
static essence.”17 It varies over time and depends on context.
No official rule specifically governs the admissibility of cultural evidence
in the criminal courtroom. Sometimes judges admit cultural evidence; sometimes
they exclude it. This lack of consistency and predictability is unsettling to
defendants and makes it difficult for defense attorneys to advise their clients or
develop appropriate strategies. As Alison Dundes Renteln and Deirdre Evans-
11.
For example, in Trujillo-Garcia v. Rowland, No. 93-15096, 1993 WL
460961, at *1–2 (9th Cir. 1993), the defendant asked the trial court to instruct the jury to
apply a reasonable Mexican person standard to his claim of provocation.
12.
In People v. Kimura, No. A-091133 (L.A. Super. Ct. Nov. 21, 1985), the
prosecutor allowed the defendant, a Japanese woman who killed her two young children and
then attempted to commit suicide, to plead guilty to manslaughter. See also Kim, The
Cultural Defense and the Problem of Cultural Preemption, supra note 2, at 121. In United
States v. Whaley, 37 F. 145, 145–46 (C.C.S.D. Cal. 1888), the district attorney decided to
dismiss the murder charge and permit the defendant to plead guilty to manslaughter in light
of Indian customs and superstitions. See also Maguigan, supra note 5, at 63–67 (discussing
the use of cultural background information in plea bargaining and sentencing proceedings).
13.
See United States v. Carbonell, 737 F. Supp. 186, 187 (E.D.N.Y. 1990)
(where sentencing court departed downward from the applicable federal sentencing
guidelines in part because defendant’s “sole motivation in agreeing to [commit the crime]
was to help out a fellow Colombian from the same hometown who was down on his luck,”
after hearing that an obligation to help others from one’s country is a “common sentiment in
the Hispanic community”); State v. Rodriguez, 204 A.2d 37, 38 (Conn. Super. Ct. 1964)
(reducing sentence based in part on defendant’s Puerto Rican heritage); see also Damian W.
Sikora, Note, Differing Cultures, Differing Culpabilities?: A Sensible Alternative: Using
Cultural Circumstances as a Mitigating Factor in Sentencing, 62 OHIO ST. L.J. 1695, 1698
(2001) (arguing for cultural evidence to be used as a mitigating factor at sentencing). But
see Gutierrez v. State, 920 P.2d 987, 990–91 (Nev. 1996) (affirming death sentence despite
evidence regarding defendant’s upbringing in Mexico and the local cultural belief in
witches).
14.
A.L. KROEBER & CLYDE KLUCKHOHN, CULTURE: A CRITICAL REVIEW OF
CONCEPTS AND DEFINITIONS 41–72 (1952) (collecting over 150 different definitions of
“culture”).
15.
Michaël Fischer, Note, The Human Rights Implications of a “Cultural
Defense,” 6 S. CAL. INTERDISC. L.J. 663, 669 (1998) (quoting WILLIAM A. HAVILAND,
ANTHROPOLOGY 278 (5th ed. 1989)).
16.
Volpp, supra note 3, at 1592.
17.
Id. at 1589.
2007]
CULTURAL CONVERGENCE
917
Pritchard have remarked, “whether a defendant can invoke a cultural defense
depends almost entirely on the luck of the draw, that is, on who the judge is.”18
Whether immigrant and minority defendants should be allowed to
introduce cultural evidence in their defense is a hotly contested issue, with
multiculturalists and feminists often taking opposite positions.19 Defenders of
cultural evidence argue that the United States is a multicultural and pluralistic
society which should permit immigrants and minorities to show how their cultural
backgrounds may have contributed to their actions.20 Some feminist scholars have
opposed the admission of cultural evidence on the ground that it can further harm
the victim of cultural violence who is often a woman or a child.21 Because cultural
evidence often finds use by male defendants who have killed or harmed female
victims, the admission of cultural evidence appears to condone such violence.22
18.
Evans-Pritchard & Renteln, supra note 6, at 36.
19.
Chiu, The Cultural Defense, supra note 6, at 1120–25 (describing the debate
between feminists and multiculturalists over the admissibility of cultural evidence);
Maguigan, supra note 5, at 97; see also SUSAN MOLLER OKIN, IS MULTICULTURALISM BAD
FOR WOMEN? 9–24 (1999) [hereinafter OKIN, IS MULTICULTURALISM BAD FOR WOMEN?]
(arguing that there is a considerable likelihood of tension between feminism and
multiculturalism, especially when cultural groups seek to use culture as a defense in
criminal cases); Susan Moller Okin, Feminism and Multiculturalism: Some Tensions, 108
ETHICS 661, 664 (1998) (arguing that liberal progressives often fail to take into account
tensions between feminism and multiculturalism).
20.
See, e.g., Sing, supra note 6, at 1847 (noting that advocates of cultural
evidence “claim that recognition of a cultural defense will advance two desirable ends
consistent with the broader goals of liberal society and the criminal law: (1) the
achievement of individualized justice for the defendant; and (2) a commitment to cultural
pluralism”); Sikora, supra note 13, at 1707–08 (arguing that “forced assimilation goes
against the American ideal that cultural pluralism should be encouraged and that America is
a place where people from all over the world can come, and their differences will be
accepted and embraced”).
21.
Coleman, supra note 3, at 1095; Rimonte, supra note 6; Gallin, supra note 6;
Naomi Mendelsohn, Note, At the Crossroads: The Case for and Against a Cultural Defense
to Female Genital Mutilation, 56 RUTGERS L. REV. 1011, 1033 (2004) (arguing that
enabling a cultural defense to female genital mutilation sends a message that culture is more
valuable than the bodily integrity of women and children); Michele Wen Chen Wu,
Comment, Culture Is No Defense for Infanticide, 11 AM. U. J. GENDER SOC. POL’Y & L.
975, 977 (2003) (“[A] child’s right to live . . . makes one’s culture an inadequate defense.”).
But see Janet C. Hoeffel, Deconstructing the Cultural Evidence Debate, 17 U. FLA. J. L. &
PUB. POL’Y 303, 320–21 (2006) (noting that a review of fifty cultural evidence cases
showed that twenty-two of the cases did not involve violence against women or children,
and, of the eighteen that did, the use of cultural evidence to excuse or justify a male
defendant’s violence against a woman was effective in drastically reducing the charge or
sentence in only three cases).
22.
Coleman, supra note 3, at 1095 (“What happens to the victims—almost
always minority women and children—when multiculturalism and individualized justice are
advanced by dispositive cultural evidence?”). Coleman notes that the question of whether
cultural evidence should be admitted puts liberals in a quandary, which she calls the
“Liberals’ Dilemma.” Id. at 1096. Coleman argues that liberals, who tend to respect both
cultural difference and the rights of women, have to choose one over the other when
deciding whether cultural evidence should be admitted. But see Taylor, supra note 6, at 447,
918
ARIZONA LAW REVIEW
[VOL. 49:911
Opponents of cultural evidence also argue that admitting it violates the
principle of equal protection by favoring immigrants and racial minorities over
other Americans.23 Doriane Coleman, for example, argues:
Tolerance of the use of immigrant cultural evidence in criminal
proceedings fundamentally conflicts with the principle that ‘the
protections given by the laws of the United States shall be equal in
respect to life and liberty . . . [for] all persons.’ Indeed, permitting
cultural evidence to be dispositive in criminal cases violates both the
fundamental principle that society has a right to government
protection against crime, and the equal protection doctrine that holds
that whatever protections are provided by government must be
provided to all equally, without regard to race, gender, or national
origin.24
This argument that recognition of cultural evidence gives immigrants and
racial minorities special treatment over Americans overlooks the fact that
Americans already have an advantage in the American criminal courtroom. As Leti
Volpp has observed, talking about a “cultural” defense for immigrants erroneously
presumes that America is without a culture.25 Numerous criminal law doctrines,
including the “no duty to retreat” rule in self-defense law, the broad version of the
defense of habitation, and the “reasonable belief in consent” defense against
forcible rape, reflect the American culture in which we live.26 Moreover, when an
American asserts a defense that includes a reasonableness requirement, such as
self-defense, provocation, duress or necessity, he or she can rely on American
cultural norms to bolster his or her claims of reasonableness.27
Recently, a few scholars have renewed calls for recognition of a separate
cultural defense. In her recent book, The Cultural Defense,28 Alison Dundes
Renteln argues that courts should take culture into account when adjudicating
criminal cases. Renteln proposes an official cultural defense, enabling defendants
to introduce evidence concerning their culture and its relevance to their case.29 She
465–70 (arguing that the “‘liberal’s dilemma’ arises from an overly narrow definition of
culture that is Eurocentric, racist, and sexist”); Volpp, supra note 3, at 1575 (challenging
Coleman’s thesis as “a regressive vision of immigrant communities, of multiculturalism,
and of scholarship on these issues”).
23.
See Coleman, supra note 3.
24.
Id. at 1135–36.
25.
Volpp, (Mis)Identifying Culture, supra note 6, at 62 (“Creating a ‘cultural
defense’ for immigrants in the United States thus rests on the implication that U.S. law is
without a culture.”).
26.
See Chiu, Culture In Our Midst, supra note 6; see also Volpp, Blaming
Culture for Bad Behavior, supra note 6, at 115; Volpp, (Mis)Identifying Culture, supra note
6, at 62, 68; Volpp, supra note 3.
27.
See CYNTHIA LEE, MURDER AND THE REASONABLE MAN: PASSION AND FEAR
IN THE CRIMINAL COURTROOM (2003) (arguing that traditional criminal law defenses that
include a reasonableness requirement, such as the defense of provocation and the defense of
self-defense, are in essence cultural defenses that favor American defendants); Sing, supra
note 6, at 1869 (calling the defense of provocation a “dominant cultural defense”).
28.
RENTELN, supra note 4.
29.
Id. at 187.
2007]
CULTURAL CONVERGENCE
919
reasons that “[a] defendant whose criminal act is culturally motivated is less
blameworthy” than one whose acts are not culturally motivated, and therefore
deserves less punishment.30 Renteln’s proposed cultural defense would operate as
a partial excuse.31 That is, a defendant’s culture would not exonerate the defendant
completely, but could mitigate the charged offense.
Similarly, Elaine Chiu argues that the criminal law should recognize
culture as a defense. In contrast to Renteln, Chiu argues that culture should operate
as a complete justification, not merely as a partial excuse.32 Chiu reasons when
cultural claims are treated as partial excuses, the criminal law suggests that the
defendant is mentally or emotionally deficient.33 Often, however, nothing is wrong
with the defendant. He or she has simply acted in conformity with his or her
culture.
It is unlikely that state legislators will enact legislation recognizing an
official cultural defense anytime soon. After the September 11, 2001 terror attacks
on the World Trade Center and the Pentagon, there was little public sympathy for
people with different cultural or religious backgrounds who commit crimes of
violence purportedly because of these backgrounds. In light of rising antiimmigrant sentiment today,34 publicly elected officials might worry about the
political consequences of supporting legislation that would make it easier for
defendants who commit culturally motivated crimes to win acquittals or lighter
sentences.
It is difficult to determine the extent to which cultural defenses are
successful.35 No nationwide database tracks the outcomes in cultural defense cases.
30.
Id. at 189.
31.
Id. at 191.
32.
Chiu, supra note 4.
33.
Id.
34.
For example, under mounting pressure from constituents opposed to illegal
immigration, in October 2006 Congress passed legislation authorizing the construction of
700 miles of fencing along the U.S. and Mexican border. Michael A. Fletcher & Jonathan
Weisman, Bush Signs Bill Authorizing 700-Mile Fence for Border, WASH. POST, Oct. 27,
2006, at A4. Also in 2006, anti-immigration forces launched a “Send-A-Brick” campaign,
encouraging citizens to send bricks to members of Congress, asking them to stop the flood
of illegal immigration. Carl Hulse, A Build-a-Protest Approach to Immigration, N.Y. TIMES,
May 31, 2006, at A15. In 2007, President George W. Bush’s attempts to enact immigration
reform legislation met with fierce opposition from his Republican base because of
provisions that would allow illegal immigrants to become lawful permanent residents if they
fulfilled certain requirements. See Michael Abramowitz, Immigrant Legislation Splits GOP;
Right Lashes Out at Bush and Senate Over Compromise, WASH. POST, May 19, 2007, at A1.
In April 2007, Republican Representative Dan Lungren joined fellow Republican
Representatives Nathan Deal (GA) and Brian Bilbray (CA) in introducing legislation that
would end birthright citizenship. David Whitney, Citizenship Bill Faces Long Odds in
Democratic Congress, THE PROVIDENCE SUNDAY J., Sept. 16, 2007, at A16 (noting that
“each year, an estimated 400,000 babies are born in the United States to mothers who are
illegal immigrants” and currently “each of these babies automatically becomes a U.S.
citizen when it takes its first breath”).
35.
Nontheless, Susan Moller Okin notes that the three types of cases in which
cultural defenses have been used most successfully in the United States are: (1) cases in
920
ARIZONA LAW REVIEW
[VOL. 49:911
Moreover, in this country, most traditional legal research relies on the published
appellate decision. Whenever any defense strategy is successful, the defendant
rarely files an appeal. Without an appeal, the chances of a published written record
about the case are extremely low. This makes research about the effectiveness of
particular defense strategies extremely difficult.36
Nonetheless, commentators seem to agree that most attempts to use
cultural evidence to exonerate a defendant or mitigate charges fail.37 One reason
may be a “when in Rome, do as the Romans do” way of thinking about the law.38
Judges and jurors often feel immigrants and racial minorities who live in America
should abide by American laws and customs. If they break the law, they should not
hide behind a curtain of cultural tradition different from America’s dominant
culture.
This “when in Rome” argument enjoys great appeal, drawing, as it does,
on our strong tradition of not allowing people to argue ignorance of the law. If I
fail to file my income taxes, I cannot escape liability by claiming I did not know I
had to do so. Ignorance of the law is no excuse.
The problem with this argument is that it does not seem to apply to most
cultural defense cases. While some immigrant defendants may seek to use cultural
evidence to excuse their ignorance of the law, most do not. Rather, most seem to
introduce evidence about their cultural background to rebut an element of the
charged offense, such as the mens rea, or to bolster a traditional criminal law
defense, such as insanity, provocation, or self-defense.39 Given that immigrant and
minority defendants seek to use cultural evidence to bolster traditional criminal
law defenses, it is odd that most such attempts are unsuccessful. This makes the
relatively rare successful uses of cultural evidence all the more interesting.
Another reason cultural claims often fail may be a result of what Dan
Kahan and Donald Braman call “cultural cognition.”40 According to Braman and
Kahan, jurors and judges, like ordinary people, evaluate the credibility of people,
arguments, and evidence through the prism of their own cultural norms.41 If these
which Hmong men kidnap and rape Hmong women, then claim their actions were part of
their cultural practice of marriage by capture; (2) cases in which male immigrants from
Asian and Middle Eastern countries murder wives who “have committed adultery or treated
their husbands in a servile way”; and (3) cases in which Japanese or Chinese mothers killed
their children and attempted to kill themselves in response to spousal infidelity. OKIN, IS
MULTICULTURALISM BAD FOR WOMEN?, supra note 19, at 18. As discussed in Part III,
cultural norm convergence is reflected in all three of these categories.
36.
Another problem is that research in this area must rely heavily on newspaper
and media coverage which is sporadic and tends to focus on the exceptional cases.
37.
See, e.g., RENTELN, supra note 4, at 5; Maguigan, supra note 5; Sacks, supra
note 3, at 523. Janet Hoeffel describes a number of cases in which defense attempts to use
cultural evidence were not successful. See Hoeffel, supra note 21, at 321–27.
38.
RENTELN, supra note 4, at 5, 193.
39.
See supra notes 8–11; see also Taylor, supra note 6, at 448.
40.
See Donald Braman & Dan M. Kahan, Legal Realism as Psychological and
Cultural (Not Political) Realism, in HOW LAW KNOWS 93, 94 (Austin Sarat, Lawrence
Douglas & Martha Merrill Umphrey eds., 2007).
41.
Id. at 102.
2007]
CULTURAL CONVERGENCE
921
norms are widely shared, as they often will be when the defendant, the attorneys,
the witnesses, the judge, and the jurors are all white and American, jurors will tend
to agree with one another on whether a witness is credible, whether an argument
makes sense, and whether particular evidence is relevant. In contrast, “in cases
where there is competition between cultural groups over which values should be
privileged in the law, there will be serious disagreement.”42 Often this
disagreement will manifest itself in differences in interpretations of the law and
even the facts.43 Jurors and judges may downplay the relevance of evidence that
fails to conform to preexisting scripts.44 Thus, when an immigrant or minority
defendant claims that his culture encouraged him to act in a way that violated
American law, American judges and jurors may not understand the relevance of
the defendant’s cultural evidence because it fails to conform to their cultural
norms. When the immigrant or minority defendant’s claim conforms to American
cultural norms, the claim may be more readily accepted.
A variety of factors contribute to the effectiveness of any particular
criminal defense strategy, including the makeup of the jury, the background of the
judge, the cultural sensitivities of the attorneys, and the attitude of the victim (or
victim’s family) toward the defendant.45 In “cultural defense” cases, another factor
comes into play. Whether there is convergence between the cultural norms relied
upon by the immigrant or minority defendant and the cultural norms of American
society may also influence the ultimate verdict. Cultural convergence theory finds
roots in Derrick Bell’s interest convergence theory, to which I will now turn.
II. INTEREST CONVERGENCE THEORY
The term “interest convergence” was first coined by Derrick Bell in a
Harvard Law Review article published in 1980.46 In that article, Bell responded to
criticisms leveled by Herbert Wechsler against the U.S. Supreme Court’s decision
in Brown v. Board of Education.47 In his famous 1959 article, Toward Neutral
Principles of Constitutional Law,48 Wechsler accused the Court of deciding Brown
without a neutral and principled basis. In response, Bell pointed out that at least on
a normative level, racial equality was “the neutral principle which underlay the
Brown opinion.”49 However, because racial equality was not viewed by most
Americans in the 1950s as a desirable goal, Bell posited that the real driving force
behind Brown was interest convergence. Interest convergence, explained Bell, is
the idea that “[t]he interest of blacks in achieving racial equality will be
accommodated only when it converges with the interests of whites.”50
42.
Id. at 114.
43.
Id. at 102.
44.
Id.
45.
I thank Sara Sun Beale for this observation about the importance of the
attitude of the victim or victim’s family toward the defendant.
46.
Bell, supra note 7.
47.
347 U.S. 483 (1954).
48.
Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73
HARV. L. REV. 1 (1959).
49.
Bell, supra note 7, at 522.
50.
Id. at 523.
922
ARIZONA LAW REVIEW
[VOL. 49:911
Bell explained how the Brown decision to end racial segregation in the
public schools reflected a convergence between the interests of blacks in achieving
racial equality and the interests of whites. Brown helped the United States in its
Cold War foreign relations by providing the U.S. with instant credibility regarding
its well-advertised commitment to racial equality. Segregation had hurt America’s
reputation as a nation committed to freedom, equality, and democracy for all, and
had undermined America’s efforts to persuade Third World countries to convert to
democracy. By ordering the public schools to desegregate, the Court demonstrated
America’s commitment to equality to the world.51
Bell also posited that the Brown decision helped America in its efforts to
persuade African Americans that they were a welcome part of the United States.
Bell pointed out that Blacks who had fought for this country in World War II were
returning home to widespread racial discrimination. Elite whites worried that in the
event of another war, African Americans might be reluctant to fight again. The
Brown decision was thus important domestically as a symbol of America’s
commitment to equality.52
In later work, Bell elaborated upon his theory, explaining:
[Only] when whites perceive that it will be profitable or at least
cost-free to serve, hire, admit, or otherwise deal with blacks on a
nondiscriminatory basis, they do so. When they fear—accurately or
not—that there may be a loss, inconvenience, or upset to themselves
or other whites, discriminatory conduct usually follows.53
According to Bell, “racism is a permanent feature of American society,
necessary for its stability and for the well-being of the majority of its citizens.”54
Interest convergence explains how Blacks “are able to achieve political gains
despite the essentially racist nature of American society.”55 Commenting on Bell’s
theory, Charles Ogletree notes that interest convergence works as a safety valve,
permitting “short-term gains for African Americans when doing so furthers the
short- or long-term goals of the white elite. . . . This is an important check on
widespread disaffection that may end in revolution.”56
Although Bell’s hypothesis about the underlying motivations behind the
Brown decision initially evoked much skepticism and even outrage,57 ultimately
his hypothesis was vindicated. In 2000, Mary Dudziak, a professor of law and
51.
52.
53.
Id. at 524.
Id. at 524–25.
DERRICK A. BELL, JR., FACES AT THE BOTTOM OF THE WELL: THE
PERMANENCE OF RACISM 7 (1992).
54.
Charles J. Ogletree, Jr., Tulsa Reparations: The Survivor’s Story, 24 B.C.
THIRD WORLD L.J. 13, 20 (2004) (citing BELL, FACES AT THE BOTTOM OF THE WELL, supra
note 53, at 3–10).
55.
Id.
56.
Id. at 21.
57.
Richard Delgado, Explaining the Rise and Fall of African American
Fortunes—Interest Convergence and Civil Rights Gains, 37 HARV. C.R.-C.L. L. Rev. 369,
373 (2002) (reviewing MARY L. DUDZIAK, COLD WAR CIVIL RIGHTS: RACE AND THE IMAGE
OF AMERICAN DEMOCRACY (2000)).
2007]
CULTURAL CONVERGENCE
923
history at the University of Southern California, published Cold War Civil Rights:
Race and the Image of American Democracy.58 In her book, Dudziak provided
proof in the form of U.S. State Department files, other archival records, and
international media coverage that “Brown v. Board of Education and the softening
of racial attitudes that it ushered in were largely prompted by Cold War
considerations.”59 Dudziak explains that even though Brown was decided in 1954
when Dwight D. Eisenhower was President, it was the Truman administration’s
Department of Justice “that initiated the government’s participation in the legal
battle to overcome Jim Crow.”60 The Truman administration submitted amicus
curiae briefs in numerous civil rights cases preceding Brown, emphasizing “the
international implications of race discrimination . . . [and] the negative impact on
U.S. foreign relations that a prosegregation decision might have.”61 In one brief,
the Truman administration “hammered home the point that racial segregation
hampered the U.S. government’s fight against world communism.”62 The Brief of
the United States as amicus curiae in Brown reflects the foreign-policy concerns
behind the administration’s involvement in civil rights cases:
[T]he existence of discrimination against minority groups in the
United States has an adverse effect upon our relations with other
countries. Racial discrimination furnishes grist for the Communist
propaganda mills, and it raises doubts even among friendly nations
as to the intensity of our devotion to the democratic faith.63
Several legal scholars were quick to recognize that Dudziak’s work
essentially confirmed the theory that Bell had put forth twenty years earlier.64 In a
review of Dudziak’s book, Robert Chang and Peter Kwan note that “Mary
Dudziak’s work provides a wonderful complement to Derrick Bell’s.”65 Richard
Delgado notes that Dudziak’s book and an article she published in the Stanford
Law Review “build on an impressive insight by Derrick Bell that gains for blacks
coincide with white self-interest and materialize at times when elite groups need a
breakthrough for African Americans, usually for the sake of world appearances or
the imperatives of international competition.”66 Similarly, Neil Gotanda writes:
Mary Dudziak has written a study of the foreign policy influences
upon Brown. Dudziak used as her framework of analysis, an
influential suggestion of Professor Derrick Bell that civil rights
58.
DUDZIAK, supra note 57.
59.
Delgado, supra note 57, at 373.
60.
DUDZIAK, supra note 57, at 90.
61.
Id.
62.
Id. at 93.
63.
Id. at 100.
64.
Dudziak cites to Bell at least once in her book, id. at 258 n.26, and in an
earlier piece she more explicitly acknowledged the link between her work and Bell’s
interest convergence theory. Mary L. Dudziak, Desegregation as a Cold War Imperative, 41
STAN. L. REV. 61, 66 (1988) (noting that her article “demonstrates Derrick Bell’s interestconvergence thesis”).
65.
See Robert S. Chang & Peter Kwan, When Interests Diverge, 100 MICH. L.
REV. 1532, 1537 (2002) (reviewing DUDZIAK, supra note 57).
66.
Delgado, supra note 57, at 371.
924
ARIZONA LAW REVIEW
[VOL. 49:911
progress occurs when there is an interest convergence between
white Americans and Black Americans, and that progress ends when
their interests diverge. She concludes that the Bell interest
convergence hypothesis is supported by the history of Brown.67
Other legal scholars have endorsed Bell’s theory more explicitly,
applying it in a number of different ways.68 First, legal scholars have used interest
convergence theory to explain Supreme Court cases, legislative enactments, and
state court decisions.69 Second, legal scholars have used interest convergence
theory as an affirmative tool of strategy or prediction regarding mostly legislative
67.
Neil Gotanda, Towards Repeal of Asian Exclusion: The Magnuson Act of
1943, the Act of July 2, 1946, The Presidential Proclamation of July 4, 1946, The Act of
August 9, 1946, and The Act of August 1, 1950, in ASIAN AMERICANS AND CONGRESS: A
DOCUMENTARY HISTORY 309, 313 (Hyung-Chan Kim ed., 1996).
68.
A few legal scholars have focused on Bell’s theory of racial sacrifice which
cautions minority groups against being too quick to join with majority causes because when
minority and majority interests diverge, minority interests are likely to be sacrificed to
preserve the majority’s position:
The flip side to Bell’s interest-convergence theory is his theory of racial
sacrifice. Just as the interests of blacks are advanced when they converge
with the interests of whites, he argues that the interests of blacks and
even hard-won racial remedies will be sacrificed or abrogated when such
remedies threaten the interests of “superior societal status of whites.”
Sheryll D. Cashin, Shall We Overcome? Transcending Race, Class, and Ideology Through
Interest Convergence, 79 ST. JOHN’S L. REV. 253, 272 (2005) (citing DERRICK A. BELL, JR.,
SILENT COVENANTS: BROWN V. BOARD OF EDUCATION AND THE UNFULFILLED HOPE FOR
RACIAL REFORM 69 (2004)). Scholars who focus on Bell’s theory of racial sacrifice include
Richard Delgado & Jean Stefancic, Hateful Speech, Loving Communities: Why Our Notion
of “A Just Balance” Changes So Slowly, 82 CAL. L. REV. 851, 865 (1994) (“[I]nterest
convergence is not a particularly promising avenue for blacks and others interested in
promoting the cause of hate-speech regulation.”); Richard Delgado, Rodrigo’s Ninth
Chronicle: Race, Legal Instrumentalism, and the Rule of Law, 143 U. PA. L. REV. 379
(1994) (warning minorities to cautiously seek interest convergence because any gains may
be short-lived while the losses will be long lasting); Richard Delgado & Helen Leskovac,
The Politics of Workplace Reforms: Recent Works on Parental Leave and a FatherDaughter Dialogue, 40 RUTGERS L. REV. 1031 (1988) (warning that some of the recent
workplace reforms, such as parental leave, may not be beneficial to women in the long run);
Maurice R. Dyson, Playing Games With Equality: A Game Theoretic Critique of
Educational Sanctions, Remedies, and Strategic Noncompliance, 77 TEMP. L. REV. 577,
604–09 (2004) (explaining the interest convergence dilemma which “arises when minority
and majority coalitions find a common basis to cooperate but where cooperation ultimately
leads to a marginal, if not harmful, result for minorities”); Angela Onwuachi-Willig, For
Whom Does the Bell Toll: The Bell Tolls for Brown?, 103 MICH. L. REV. 1507 (2005)
(reviewing BELL, supra). Bell’s racial sacrifice theory is viewed by some as a strand of
Bell’s interest convergence theory. I treat Bell’s theory of racial sacrifice as a separate
theory.
69.
See infra Part II.A; see also Christopher A. Bracey, Dignity in Race
Jurisprudence, 7 U. PA. J. CONST. L. 669, 715 (2005) (arguing that the U.S. Supreme
Court’s refusal to extend disparate impact theory to equal protection jurisprudence in
Washington v. Davis was consistent with Bell’s interest convergence theory).
2007]
CULTURAL CONVERGENCE
925
reform.70 To a certain extent, interest convergence in the legislative context is not
surprising given that politicians are accustomed to horse-trading to achieve their
goals. What is interesting is that interest convergence, while normal and expected
in the legislative context, appears to be operating vigorously in the judicial context,
where some might say it should have no force.
A. Interest Convergence as Explanation
Interest convergence theory is often deployed to explain a particular case
or a line of judicial decisions or legislative enactments. Just as Derrick Bell used
the theory to explain the latent forces behind the Brown decision, other legal
scholars have used interest convergence to explain a host of U.S. Supreme Court
decisions, legislative enactments, and lower state court cases.
1.
a.
Supreme Court Cases
Hernandez v. Texas
Richard Delgado uses interest convergence theory to explain the U.S.
Supreme Court’s decision in Hernandez v. Texas.71 Hernandez was indicted for the
murder of a man named Joe Espinosa by a grand jury in Jackson County, Texas.72
He was convicted and sentenced to life imprisonment.73 Prior to trial, Hernandez’s
lawyer moved to quash the indictment, arguing that persons of Mexican descent
had suffered systematic exclusion from service as jury commissioners, grand
jurors, and petit jurors, and that this exclusion deprived his client of equal
protection.74 The trial judge denied the motion.75
The Court of Criminal Appeals of Texas affirmed on the ground that
Mexican people are white people of Spanish descent.76 Since the grand jury that
indicted Hernandez and the petit jury that tried him were “composed of members
of his race, it cannot be said, in the absence of proof of actual discrimination, that
[Hernandez] has been discriminated against . . . and thereby denied equal
protection of the laws.”77
70.
See infra Part II.B. Because Bell’s theory has enjoyed widespread
application, this review of the legal scholarship applying interest convergence summarizes
only a small, but representative, sample of such scholarship. Some scholars have used
interest convergence neither to explain judicial or legislative action nor to advocate for
social or political reform. See, e.g., Michael Dehaven Newsom, Some Kind of Religious
Freedom: National Prohibition and the Volstead Act’s Exemption for the Religious Use of
Wine, 70 BROOKLYN L. REV. 739 (2005) (positing that interest convergence is responsible
for the benefits to minority religious groups of the Volsted Act’s exemption for the religious
use of wine); Lani Guinier, From Racial Liberalism to Racial Literacy: Brown v. Board of
Education and the Interest-Divergence Dilemma, 91 J. AM. HIST. 92 (2004).
71.
347 U.S. 475 (1954).
72.
Id. at 476.
73.
Id.
74.
Id. at 476–77.
75.
Id. at 477.
76.
Hernandez v. State, 251 S.W.2d 531, 535 (Tex. App. 1952).
77.
Id. at 536.
926
ARIZONA LAW REVIEW
[VOL. 49:911
The U.S. Supreme Court reversed, holding that the systematic exclusion
of persons of Mexican descent from service as jurors in Jackson County deprived
Hernandez of the equal protection of the laws.78 Noting a history of pervasive
discrimination against Mexicans in southern Texas, evidenced by whites-only
bathrooms and a sign in at least one local restaurant barring Mexicans,79 the Court
ruled that:
Circumstances or chance may well dictate that no persons in a
certain class will serve on a particular jury or during some particular
period. But it taxes our credulity to say that mere chance resulted in
there being no members of this class among the over six thousand
jurors called in the past 25 years. The result bespeaks
discrimination, whether or not it was a conscious decision on the
part of any individual jury commissioner. The judgment of
conviction must be reversed.80
While Hernandez has been hailed as a major civil rights victory for
Mexican Americans, Delgado notes that fear of Latin American communism and
domestic unrest may have prompted the Supreme Court decision more than a
concern for the rights of Mexican-Americans.81 At the time Hernandez was
making its way up to the Supreme Court, the United States “was in the early stages
of the Cold War, in which it was competing with the Soviet Union for the loyalties
of the Third World.”82 The U.S. Communist Party was starting to agitate for the
rights of Mexican farm and mine workers,83 and several government commissions
had examined the threat of Latin American communism.84 In 1950, Assistant
Secretary of State Edward Miller warned of the dangers of communist political
aggression in Latin America.85 Three years later, then Secretary of State John
Foster Dulles predicted:
[T]he conditions in Latin America are somewhat comparable to . . .
China in the mid-thirties when the Communist movement was
getting started . . . if we don’t look out, we will wake up some
morning and read in the newspapers that there happened in South
America the same kind of thing that happened in China in 1949.86
Apparently, several of the Justices on the Supreme Court were aware of
these Cold War concerns. Justice William Douglas, for example, wrote about how
racial discrimination in America hurt America’s standing abroad.87 On one trip to
Panama, he wrote to a friend in the United States about how that country was ripe
78.
Hernandez, 347 U.S. at 477–82.
79.
Id. at 479–80.
80.
Id. at 482.
81.
Richard Delgado, Rodrigo’s Roundtable, Hernandez v. Texas and the
Interest-Convergence Dilemma, 41 Harv. C.R.-C.L. L. Rev. 23, 43 (2006).
82.
Id. at 40.
83.
Id. at 43.
84.
Id. at 45.
85.
Id. at 49–50.
86.
Id. at 50.
87.
Id. at 52 (citing DUDZIAK, supra note 57, at 104).
2007]
CULTURAL CONVERGENCE
927
for communism.88 On a second trip to Latin America, Justice Douglas tried to
dissuade some university students from joining the local communist party. Justice
Hugo Black worried that America’s treatment of its racial minorities might deprive
the U.S. of political capital in the fight against world communism.89 Justice Earl
Warren spoke about how the world looked to the United States as a model of
justice and expressed his belief that adhering to the Constitution and the Bill of
Rights would make us more secure than a stockpile of hydrogen bombs.90 In short,
the convergence of interests—the American foreign policy interest in curbing the
spread of communism in Latin America and the threat of communism at home
coupled with the interest of Mexican Americans in not suffering systematic
exclusion from jury pools—may have been an influential factor contributing to the
result in Hernandez.
b.
Plyler v. Doe
Similarly, Maria Pabon Lopez uses interest convergence to explain Plyler
v. Doe.91 In Plyler, the U.S. Supreme Court held that a Texas statute withholding
funds from local school districts for the education of undocumented children and
authorizing such districts to deny enrollment to such children violated the Equal
Protection Clause of the Fourteenth Amendment. The Court first explained that
undocumented children are “persons” entitled to the protections of the Fourteenth
Amendment.92 The Court then considered the possible state interests that might
support the Texas legislature’s decision to deny the children of undocumented
immigrants a public education and found none of these interests substantial enough
to justify the denial.93 The Court seemed particularly concerned that denying a
public education to the children of undocumented immigrants would impose “a
lifetime of hardship on a discrete class of children not accountable for their
disabling status.”94
While Plyler v. Doe appears on the surface to be an all-out victory for the
children of undocumented immigrants and immigrant rights advocates, Lopez sees
Plyler in a less positive light, arguing that “Plyler acts as a form of preserving the
undocumented as a separate class, ensuring a primary and secondary education for
their children but nothing more in society.”95 Lopez explains:
That Plyler can be viewed as an interest convergence case is further
evinced by the fact that it was decided at a time when the hiring of
undocumented workers had not yet been outlawed by the
Immigration Reform and Control Act (IRCA), and thus, it still was
88.
Id. (citing Letter from William O. Douglas to John Cooper Wiley, Apr. 24,
1953, in THE DOUGLAS LETTERS 294 (Melvin I. Urofsky ed., 1987)).
89.
Id. at 52–53 (citing DUDZIAK, supra note 57, at 106–07).
90.
Id. at 53–54 (citing DUDZIAK, supra note 57, at 106).
91.
457 U.S. 202 (1982); see also Maria Pabon Lopez, Reflections on Educating
Latino and Latina Undocumented Children: Beyond Plyler v. Doe, 35 SETON HALL L. REV.
1373, 1405 (2005).
92.
Plyler, 457 U.S. at 210–15.
93.
Id. at 228–30.
94.
Id. at 223.
95.
Lopez, supra note 91, at 1398.
928
ARIZONA LAW REVIEW
[VOL. 49:911
considered to serve the nation’s interest to have undocumented
workers and their families in the country.96
Lopez points out that higher education remains mostly inaccessible for
undocumented students, largely because they lack legal immigration status.97
Therefore, while Plyler guarantees the children of undocumented immigrants the
right to an elementary and high school education, most are unable to go on to
college and work legally in the United States. The only way they are able to stay in
this country is by providing inexpensive, under-the-table labor.
Lopez notes that despite numerous legislative efforts, both at the state and
federal levels, to overrule or bypass the decision, Plyler remains good law.98 She
concludes that “[b]ecause the nation’s interest in maintaining a cheap and
expendable labor force has converged with the expectation of an education for
undocumented children, Plyler survives to this day.”99
c.
Grutter v. Bollinger
Derrick Bell uses interest convergence theory to explain Grutter v.
Bollinger,100 a 2003 Supreme Court decision upholding the University of Michigan
Law School’s use of race in its admission program against an equal protection
challenge by a white applicant.101 Justice Sandra Day O’Connor, writing for the
Court, found that Michigan Law School “has a compelling governmental interest
in attaining a diverse student body.”102 Accepting the position urged by the Fortune
500 corporations and military officials who filed amici briefs in the case,
O’Connor wrote that diversity “better prepares [white] students for an increasingly
diverse workforce and society, and better prepares them as professionals.”103 Bell
notes that the interests of Fortune 500 companies and the military in having
prospective employees and prospective military recruits exposed to minorities as
classmates during law school converged with the interests of minority students
seeking admission to elite law schools.104
96.
Id. at 1405.
97.
Id. at 1400.
98.
Id. at 1395–96.
99.
Id. at 1405.
100.
539 U.S. 306 (2003).
101.
Derrick A. Bell, Jr., Diversity’s Distractions, 103 COLUM. L. REV. 1622
(2003) [hereinafter Bell, Diversity’s Distractions]; Derrick A. Bell, Jr., The Unintended
Lessons in Brown v. Board of Education, 49 N.Y. L. SCH. L. REV. 1053 (2005); see also
Paul Frymer & John D. Skrentny, The Rise of Instrumental Affirmative Action: Law and the
New Significance of Race in America, 36 CONN. L. REV. 677, 678 (2004) (weakly
suggesting that Grutter may be “just another example of what Derrick Bell has called
‘interest convergence’—that civil rights progress occurs only in moments when it benefits
white elites, whether for economic profit or national security”).
102.
Grutter, 539 U.S. at 328.
103.
Id. at 330.
104.
Bell, Diversity’s Distractions, supra note 101, at 1623. But see Victor C.
Romero, Racial Profiling: “Driving While Mexican” and Affirmative Action, 6 MICH. J.
RACE & L. 195 (2000) (using interest convergence to explain why whites generally do not
support affirmative action—because it burdens whites).
2007]
CULTURAL CONVERGENCE
929
Michael Crusto comes to a similar conclusion. According to Crusto, the
real reason behind the Supreme Court’s Grutter decision was that a diverse student
body “enhance[s] the learning environment of the affluent white majority.”105
According to Crusto, Grutter “treats aspiring African-American students applying
to America’s elite public universities and professional schools as a ‘diversity
commodity’: there merely to serve the white majority’s needs.”106 In short,
Michigan Law School’s admissions policy was upheld because the interests of
black and other minority students in attending elite universities converged with the
interests of whites in a diverse learning environment.
Not everyone sees Grutter as an example of interest convergence. Arthur
Wolfson takes issue with the view that Grutter reflects a convergence between the
interests of big business and those of racial minorities.107 Even though the amicus
briefs filed by leading American businesses in support of the University of
Michigan Law School’s admissions policy suggest a convergence, Wolfson points
out that in the same year the Supreme Court decided Grutter, social scientists
Marianne Bertrand and Sendhil Mullainathan exposed “a marked pattern of racebased discrimination in the hiring process[es] of a cross-section of American
business.”108
Bertrand and Mullainathan compared employer responses to resumes
submitted by fictional job applicants with “very white sounding names” with the
responses to resumes submitted by fictional job applicants with “very African
American sounding names.”109 After dividing resumes into two groups (higher
quality applicants vs. lower quality applicants), Bertrand and Mullainathan sent a
set of four resumes to employers in response to help-wanted ads in Boston and
Chicago. Each employer received a resume from a higher quality applicant with a
white sounding name, one from a lower quality applicant with a white sounding
name, one from a higher quality applicant with an African American sounding
name, and one from a lower quality applicant with an African American sounding
name. They found that resumes with white sounding names had a 10.08% chance
of producing a callback whereas resumes with African American sounding names
had a 6.7% chance.110 In other words, “a job applicant with a white sounding name
can expect one callback for every ten resumes submitted while a similar applicant
with an African American sounding name can expect one callback for every fifteen
resumes submitted.”111
105.
Michael F. Crusto, Blackness as Property: Sex, Race, Status, and Wealth, 1
STAN. J. L. C.R. & C.L. 51, 58–59 (2005).
106.
Id. at 52.
107.
Arthur M. Wolfson, Business Support of Affirmative Action and
Discriminatory Hiring Practices: Contradictory or Compatible?, 27 W. NEW ENG. L. REV.
197 (2005).
108.
Id. at 197–98.
109.
Marianne Bertrand & Sendhil Mullainathan, Are Emily and Greg More
Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination
(Nat’l Bureau of Econ. Research, Working Paper No. 9873, 2003).
110.
Wolfson, supra note 107, at 205.
111.
Id. To test whether employers were using race as a proxy for socio-economic
disadvantage, the researchers assigned random addresses to the resumes of each fictional
930
ARIZONA LAW REVIEW
[VOL. 49:911
Wolfson acknowledges that at first glance the amicus briefs submitted in
support of Michigan’s affirmative action policy by leading American businesses in
Grutter and the results of the Bertrand and Mullainathan study appear to be
“wildly contradictory.”112 By supporting affirmative action, big business seemed to
be expressing “recognition of the value of increasing minority employment.”113
Yet the Bertrand and Mullainathan study suggests that businesses do not in fact
value diversity, a fact reflected in their actual hiring practices.
Wolfson explains that the support of big business for Michigan’s
affirmative action policy was based primarily on the benefit to potential white
employees of exposure to nonwhite minorities while attending law school rather
than an altruistic desire to help minority students get into law school.114 As the
Brief for Amici Curiae 65 Leading American Businesses stated, “‘[i]t is essential
that [students] be educated in an environment in which they are exposed to diverse
people, ideas, perspectives and interactions.’”115 Similarly, the brief submitted by
General Motors placed heavy emphasis on the need for “cross-cultural
competence” which is gained by potential employees through exposure to students
of diverse racial groups.116 Wolfson concludes, “[b]ecause the support of big
business for the Michigan programs reflects less of a concern for hiring minorities
than for hiring [white] employees who were exposed to minorities as students, that
support and the findings of Bertrand and Mullainathan are not contradictory.”117
According to Wolfson, the interests of minority students and the interests of big
business did not converge;118 rather, they diverged.
Wolfson’s analysis is based on a narrow interpretation of the meaning of
interest convergence. To Wolfson, interests converge only if the parties have the
exact same goals and purposes in mind. This, however, is not how Bell understood
applicant. While all applicants seemed to benefit from an affluent address, the resumes of
those with African American sounding names did not benefit at a rate higher than that of
applicants with white sounding names. The researchers concluded that the discrimination
revealed was not based on socio-economic disadvantage, but on race. Id. at 206–07.
112.
Id. at 198.
113.
Id.
114.
Id. at 210.
115.
Id. at 212 (alteration in original) (quoting Brief for Amici Curiae 65 Leading
American Businesses in Support of Respondents at 2, Gratz v. Bollinger, 539 U.S. 244
(2003) (No. 02-241) and Grutter v. Bollinger, 539 U.S. 306 (2003) (No. 02-516), 2003 WL
399056).
116.
Id. at 212–13 (citing Brief of General Motors Corp. as Amicus Curiae in
Support of Respondents at 4, Gratz, 539 U.S. 244 (2003) (No. 02-241) and Grutter, 539
U.S. 306 (2003) (No. 02-156), 2003 WL 399096).
117.
Id. at 210.
118.
On the other hand, Wolfson acknowledges that there was interest
convergence between high ranking officers of the U.S. military and the minority students.
Id. at 214–15 (“An amicus brief filed by former high ranking officers of the United States
military in support of the Michigan programs represents a rationale based on the
convergence of interests.”). This is because the military saw benefits from an officer corps
with minority representation. According to Wolfson, the military’s interest in an effective
military drawn from a diverse population and minority interest in officer placement
converged. Id. at 215.
2007]
CULTURAL CONVERGENCE
931
it. For Bell, black schoolchildren won the right to attend desegregated schools not
because those in power wanted to integrate the schools, but because desegregating
the public schools helped American foreign policy interests. In Wolfson’s
understanding of interest convergence, however, Brown would not be a case of
interest convergence because those in power were not motivated by a desire to
help black parents and their children. Interest convergence, however, does not
require the parties to have the same exact interests. Different, perhaps overlapping,
interests that produce the same result are sufficient.
2.
Legislative Enactments and State Court Trends
Some scholars have used interest convergence not merely to explain a
Supreme Court opinion, but to give reasons for legislative enactments or trends in
state courts. For example, John Hayakawa Torok uses interest convergence to
explain changes to immigration laws affecting Asians.119 Torok examines
Congress’s decision to repeal the Chinese Exclusion Acts and laws prohibiting
Chinese and other Asians from becoming naturalized U.S. citizens beginning in
1943.120 During this time, the United States was at war with Germany and Japan,
while China was an American ally.121 Torok notes that “Japanese wartime
propaganda in China emphasized the racism in American law as shown by the
Chinese exclusion acts.”122 Japan suggested the United States was no different
from European colonial powers and that it “intended to colonize China for its own
imperial purposes.”123
Then President Franklin Roosevelt recognized that repeal of the Chinese
Exclusion Acts would help preserve America’s good relationship with China. In a
message to Congress supporting repeal, Roosevelt stated:
There is now pending before the Congress legislation to
permit the immigration of Chinese people into this country and to
allow Chinese residents here to become American citizens. I regard
this legislation as important in the cause of winning the war and
establishing a secure peace.
China is our ally. For many long years she stood alone in
the fight against aggression. Today we fight at her side. . . .
But China’s resistance does not depend alone on guns and
planes and on attacks on land, on the sea, and from the air. It is
based as much on the spirit of her people and the faith of her allies.
We owe it to the Chinese to strengthen that faith. One step in this
119.
John Hayakawa Torok, “Interest Convergence” and the Liberalization of
Discriminatory Immigration and Naturalization Laws Affecting Asians, 1943–1965, 9
CHINESE AM.: HIST. & PERSP. 1 (1995); see also Gotanda, supra note 67, at 309–16
(explaining how American foreign policy interests influenced the repeal of the Chinese
Exclusion Acts).
120.
Torok, supra note 119, at 8.
121.
Id.
122.
Id.
123.
Id.
932
ARIZONA LAW REVIEW
[VOL. 49:911
direction is to wipe from the statute books [the immigration and
naturalization preclusions]. . . .
By the repeal of the Chinese exclusion laws, we can
correct a historic mistake and silence the distorted Japanese
propaganda . . . .124
Additionally, Kevin Washburn uses interest convergence theory to
explain why state courts sometimes recognize tribal criminal convictions while
refusing to recognize tribal civil judgments.125 In A Different Kind of Symmetry,
Washburn examines cross-border enforcement of civil and criminal tribal court
judgments in state courts.126 Washburn begins by observing that a number of state
courts have begun to respect tribal judgments of conviction (i.e. tribal judgments in
criminal cases) while refusing to recognize them in civil cases. He notes that since
tribal courts possess criminal jurisdiction only over Native American Indians,
recognition of tribal criminal convictions “will always place Indians in greater
jeopardy than they would face absent such a rule.”127 In contrast, because tribal
courts sometimes possess civil jurisdiction over non-Indians, “denial of
recognition of a tribal civil judgment will sometimes have the effect of denying an
Indian the ability to satisfy a judgment against a non-Indian in state court.”128
Washburn points out that “no state has yet adopted a fully symmetrical
approach to tribal civil and criminal judgments,”129 leading to asymmetry in those
states that recognize tribal criminal judgments but refuse to recognize or have
presumptions against the recognition of tribal civil judgments. Washburn explains
this asymmetry in interest convergence terms:
Viewing tribal courts as the relevant minority group under [interest
convergence] theory, the notion is that certain states are willing to
credit tribal court convictions because it serves the public safety
interests of the non-Indian majority. In contrast, the recognition of
tribal civil judgments serves no such interest and, thus, under
Professor Bell’s theory, the non-Indian majority is less willing to
respect such judgments.130
In another setting, Michael Crusto uses interest convergence theory to
explain why antebellum law in the South allowed black mistresses of white men to
own property.131 Crusto notes that while black women were deemed inferior to all
others in most respects, the law granted property rights to free black mistresses of
124.
Id. at 8–9.
125.
Kevin K. Washburn, A Different Kind of Symmetry, 34 N.M. L. REV. 263
(2004).
126.
Id. at 264–65.
127.
Id. at 286. Tribal criminal jurisdiction is limited to misdemeanors committed
by Native American Indians. Id. at 271.
128.
Id. at 286.
129.
Id. at 279.
130.
Id. at 286–87.
131.
Crusto, supra note 105.
2007]
CULTURAL CONVERGENCE
933
white men because this advanced “the sexual desires and needs of the white men
they served.”132
B. Interest Convergence as a Tool of Strategy or Prediction
A number of scholars have used interest convergence theory to advocate
in favor of desired reform.133 Legal scholarship using interest convergence as a
strategy or as a means of predicting the success of that strategy can be divided into
four categories: (1) workplace reform, (2) educational reform, (3) political reform,
and (4) other reforms.
1.
Workplace Reform
Interest convergence theory has been used to promote racial justice or
equality in the workplace. Legal scholar Michael Green argues that because the
current political climate provides little hope for improvement under Title VII, the
best way for employees of color to protect against racial discrimination in the
workplace is to use alternative dispute resolution (“ADR”) methods while
appealing to the employer’s interest in the diversity rationale expressed in
Grutter.134 Assuming employers have an interest in fostering diversity in the
workplace, they should understand the importance of having workplace dispute
resolution systems in place that are fair to employees of color. Green concludes
that “the only realistic mechanism for change must focus on the convergence of
any racial justice interests with the diversity interests of corporate America.”135
Joseph Feldman uses interest convergence to argue for racial reform in
the workplace through Title VII litigation brought by white employees against
employers engaged in racial discrimination in hiring and firing.136 Feldman
recognizes that white employees will bring such suits only if there are personal
benefits to doing so, and suggests there are associational benefits from a diverse
work environment including increased social and economic opportunities.137 He
concludes that “[i]f the rights of minorities are more likely to be furthered when
white and minority interests converge, then it is worthwhile to frame convincing
arguments that those groups’ interests do in fact converge.”138
Dorothy Brown uses interest convergence theory to encourage workers to
increase their participation in pension plans and maximize the investment of those
132.
Id. at 98, 119–22.
133.
Sheryll Cashin notes that “Bell seems to be suggesting that the interestconvergence model has predictive value; and it shows what can be achieved or maintained
when the self-interests of whites are transparent and do happen to converge with those of
blacks.” Cashin, supra note 68, at 273 (citing BELL, supra note 68, at 201).
134.
Michael Z. Green, Addressing Race Discrimination Under Title VII After
Forty Years: The Promise of ADR as Interest-Convergence, 48 HOW. L.J. 937, 959 (2005).
135.
Id. at 961.
136.
Joseph C. Feldman, Standing and Delivering on Title VII’s Promises: White
Employees’ Ability to Sue Employers for Discrimination Against Nonwhites, 25 N.Y.U.
REV. L. & SOC. CHANGE 569 (1999).
137.
Id. at 600–01.
138.
Id. at 601.
934
ARIZONA LAW REVIEW
[VOL. 49:911
funds.139 Brown notes that because the majority of private sector employees do not
participate in their employer-sponsored pension plans, white workers and workers
of color have a mutual interest in increasing their participation in pension plans
and in effectuating pension reform.140 Brown explains that “because employer
sponsored pension plans exclude a majority of Whites and people of color,
according to Professor Derrick Bell’s interest-convergence thesis, this may be a
unique opportunity to effectuate pension reform.”141
Steven Ramirez uses a similar approach to push for greater diversity on
corporate boards.142 Ramirez notes that “the bastions of corporate governance
remain the nearly exclusive province of white males, with no realistic end in
sight.”143 Ramirez maintains that this racial hegemony survives not because of
intentional racial discrimination, but because board members are chosen based on
“cultural proximity to CEOs.”144 Since “upper class white males are frequently
most culturally proximate to upper class white males,”145 this state of affairs will
end only when those in power “see it in their interest to end it.”146 Ramirez argues
that the best way to achieve greater diversity on corporate boards of directors is to
find political and economic interests that can benefit from diversity and improved
corporate governance.147 He explains:
All of this suggests an intriguing interest convergence. With all the
power that CEOs hold in our managerial corporate state, they are
not monarchs that may hold themselves above the law—yet. Very
broad constituencies have large economic stakes in the performance
of the macroeconomy. To the extent that the full costs of our
continued apartheid hangover are fully comprehended, these
constituents are a source of potential political and economic power
in favor of reform. Corporate capitalists, while clearly on the wane
in terms of power over the past several decades, are nevertheless
powerful and fundamentally in favor of reducing the power of
CEOs. Politicians intuitively fear anti big-business and populist
cries for reining in the power of business elites. Combined with
advocates for racial reform, whether Latino, African-American,
Native-American, white, or Asian-American, these forces would be
a formidable political and economic power. Add to this mix the
interest of feminists in board diversity, and a convincing
convergence of interests in favor of reform emerges.148
139.
Dorothy A. Brown, Pensions, Risk, and Race, 61 WASH. & LEE L. REV. 1501
(2004).
140.
Id. at 1539.
141.
Id. at 1505 (citation omitted).
142.
Steven A. Ramirez, Games CEOs Play and Interest Convergence Theory:
Why Diversity Lags in America’s Boardrooms and What to Do About It, 61 WASH. & LEE L.
REV. 1583 (2004).
143.
Id. at 1583–84.
144.
Id. at 1584.
145.
Id.
146.
Id.
147.
Id. at 1600.
148.
Id.
2007]
CULTURAL CONVERGENCE
2.
935
Educational Reform
Derrick Bell notes that Grutter is an example of interest convergence as a
strategy for affirmative action in higher education.149 The interests of minority
students in attending elite universities converged with the interests of the military
and big business in having their recruits and employees exposed to a diverse
student body, and this convergence helped convince the Supreme Court to uphold
the University of Michigan Law School’s affirmative action program.150
Interest convergence theory can also be used to reform public
education.151 In Caught in the Trap: Pricing Racial Housing Preferences, Mechele
Dickerson argues that if policymakers can convince middle-class parents who are
fleeing urban school systems that it is in their interest to improve their schools,
then both middle class parents and inner city school children will benefit.152 She
proposes a public school choice and auction system to encourage middle-class
parents to live in integrated neighborhoods.153 Under her proposal, parents could
rank their choices of public schools.154 If they did not get into their first choice,
they could buy a slot from a parent whose child did get into that school.155 This
would merge the interests of middle-income parents in giving their children a good
education with those of minority children in going to good public schools.156
Bryan Adamson uses interest convergence to advocate for school finance
reform in Ohio.157 Adamson argues any school finance reform that benefits
African Americans without comparable benefits for wealthy suburban whites will
be rejected or resisted.158 He explains how school integration efforts in the 1960s
and 1970s led to white flight into the suburbs.159 “Ohio’s largest cities, with one
exception, have suffered net population losses, are poorer, and are now
significantly or predominantly African-American.”160 Adamson notes that African
Americans and whites have a “markedly different view of the role of courts on the
149.
Bell, Diversity’s Distractions, supra note 101, at 1624.
150.
See supra notes 100–106 and accompanying text; see also Michelle Adams,
Shifting Sands: The Jurisprudence of Integration Past, Present, and Future, 47 HOW. L.J.
795 (2004) (arguing that integration was affirmed in Grutter not because it enhanced the
lives of minorities, but because it “enhance[ed] the lives of Americans more generally”).
151.
A. Mechele Dickerson, Caught in the Trap: Pricing Racial Housing
Preferences, 103 MICH. L. REV. 1273 (2005) (reviewing ELIZABETH WARREN & AMELIA
WARREN TYAGI, THE TWO-INCOME TRAP: WHY MIDDLE-CLASS MOTHERS & FATHERS ARE
GOING BROKE (WITH SURPRISING SOLUTIONS THAT WILL CHANGE OUR CHILDREN’S
FUTURES) (2004)).
152.
Id. at 1287.
153.
Id. at 1290–94.
154.
Id. at 1289.
155.
Id. at 1291.
156.
Id. at 1287.
157.
Bryan L. Adamson, The H’Aint in the (School) House: The Interest
Convergence Paradigm in State Legislatures and School Finance Reform, 43 CAL. W. L.
REV. 173 (2006).
158.
Id. at 174–75.
159.
Id. at 176–77.
160.
Id. at 181.
936
ARIZONA LAW REVIEW
[VOL. 49:911
subject of school finance reform.”161 He concludes that in order to be successful,
school finance reform solutions “must represent some form of interest
convergence.”162
3.
Political Reform
Another area where legal scholars have used interest convergence as a
tool of strategy or prediction is in pushing for progressive political reform. Sheryll
Cashin, for example, argues that progressives need to focus on multi-racial
coalition building to achieve political reform.163 Cashin notes that “[t]he most
significant debate in the political science literature about multiracial coalitions is
whether interest or ideology is the more effective motivating force behind
coalitions.”164 Cashin explains that “ideology” means the “pre-existing opinions
and attitudes of a particular racial group toward another group.”165 “Interest,”
according to Cashin, is “the recognized tactical or strategic advantages that one
racial group can gain by forming a coalition with another group.”166 Cashin notes
that powerful conservative whites have used racial ideology to co-opt poor and
working class whites whose interests, she argues, should be aligned with poor and
working class minorities. Poor and working class whites align themselves with
other whites because this makes them feel racially superior to non-whites. Cashin
argues that rather than focusing on ideology, progressives should focus on
similarity or convergence of interests.167
Cashin points to one example of a multiracial, multi-class coalition that
rose up in support of the Texas “10 percent plan,” which guarantees admission to
the public universities of that state to the top ten percent of every graduating high
school class in Texas.168 Developed by a group of Latino and Black activists,
legislators, and academics, this legislation passed only because conservative
Republican rural legislators whose constituents were not being admitted to the
University of Texas decided to support it.169
Another example of interest convergence as a tool of strategy for political
reform is reflected in the legal scholarship on reparations for African-American
descendants of slaves. Kevin Hopkins argues that in order for a reparations bill to
become law, it would need to provide a significant benefit to White America.170
Similarly, Charles Ogletree notes that reparations litigation has the power to create
interest convergence between blacks and whites if, for example, “legislation for
161.
Id. at 197.
162.
Id. at 201.
163.
Cashin, supra note 68.
164.
Id. at 278.
165.
Id.
166.
Id.
167.
Id. at 281, 289–91.
168.
Id. at 288.
169.
Id.
170.
Kevin Hopkins, Forgive U.S. Our Debts? Righting the Wrongs of Slavery, 89
GEO. L.J. 2531, 2540–41 (2001).
2007]
CULTURAL CONVERGENCE
937
reparations could be generalized to erase societal disadvantages suffered by whites
as well as blacks.”171
Eric Yamamoto and his co-authors go one step further, explaining how
granting reparations to African Americans can help America secure the moral high
ground in the ongoing war on terror.172 They argue that “the United States may
lack the unfettered moral authority and international standing to sustain a
preemptive worldwide war on terror unless it fully and fairly redresses the
continuing harms of its own long-term government-sponsored terrorizing of a
significant segment of its populace.”173 Yamamoto notes that “President Bush
implicitly acknowledged this ‘interest-convergence’ in his pre-9/11 anniversary
news conference statement that ‘in order for us to reject what was done to America
on September 11th, we must reject bigotry in all forms.’”174 Just as the United
States of the early 1950s “needed to portray democracy as the morally superior,
‘most civilized’ form of government,”175 the country today needs to promote its
image as a benevolent democracy abroad.176 It cannot do so if its treatment of
African Americans is not just.
In another example of interest convergence as a tool of strategy, Richard
Delgado suggests ways that interest convergence theory can support progressive
171.
Ogletree, supra note 54, at 16–17.
172.
Eric K. Yamamoto, Susan K. Serrano & Michelle Natividad Rodriguez,
American Racial Justice on Trial—Again: African American Reparations, Human Rights,
and the War on Terror, 101 MICH. L. REV. 1269, 1331 (2003); see also DERRICK BELL,
ETHICAL AMBITION: LIVING A LIFE OF MEANING AND WORTH (2002) (arguing that the war on
terror offers opportunities for interest convergence); Richard Delgado, Crossroads and
Blind Alleys: A Critical Examination of Recent Writing About Race, 82 TEX. L. REV. 121
(2003) (reviewing FRANCISCO VALDES ET AL., CROSSROADS, DIRECTIONS, AND A NEW
CRITICAL RACE THEORY (2002)); Stephanie M. Weinstein, A Needed Image Makeover:
Interest Convergence and the United States’ War on Terror, 11 ROGER WILLIAMS U. L.
REV. 403 (2006) (predicting that the need for foreign support in the war on terror will lead
the U.S. government to grant concessions to domestic minorities).
173.
Yamamoto et al., supra note 172, at 1294; see also Van B. Luong, Note,
Political Interest Convergence: African American Reparations and the Image of American
Democracy, 25 U. HAW. L. REV. 253, 274 (2002) (arguing that proponents of reparations
should argue that reparations will enhance the United States’ moral authority to persecute
terrorists).
174.
Yamamoto et al., supra note 172, at 1294 (citing News Release, White
House Office of the Press Sec’y, President Bush Holds Roundtable with Muslim-American
Leaders (Sept. 10, 2002), available at http://www.whitehouse.gov/news/releases/2002/09/
20020910-7.html).
175.
Id. at 1330.
176.
Just as the United States, in the 1940s and 1950s, tried to silence blacks
critical of American domestic policy by making it difficult for them to travel abroad while
promoting blacks willing to say good things about the U.S., see DUDZIAK, supra note 57, the
U.S. State Department today has created a new award that will honor groups that promote
the image of the U.S. abroad, see Glenn Kessler, U.S. Overseas Image Gets New Focus:
State Dept. to Honor Groups that Promote Understanding, WASH. POST, Jan. 10, 2007, at
A4 (reporting the creation of a new annual award by the U.S. State Department to honor a
“company, academic institution or other nongovernmental entity that does the most to
promote the U.S. image abroad through intercultural understanding”).
938
ARIZONA LAW REVIEW
[VOL. 49:911
immigration reform and racial justice reform.177 With the number of baby boomers
now retiring, there will be an increasing need for caretakers for the elderly.
Delgado notes that immigrants are more likely to empty bed pans and do work that
is considered dirty, but this source of labor will not be available if Congress passes
restrictive immigration legislation.178 Additionally, in trying to convince Islamic
countries that the United States represents a better, more egalitarian way of life,
the U.S. appears hypocritical when it engages in racial profiling of Black and
Brown motorists and imprisons mostly persons of color.179
4.
Other Reform
The ways in which interest convergence is used as a tool of strategy or
prediction are not limited to workplace, educational, and political reform. Joseph
Lubinski advocates for conscious application of interest convergence theory by
animal rights activists seeking legislative reform to protect animals.180 Lubinski
suggests that in order to succeed, animal rights activists need to show how animal
rights reform benefits humans and not just animals.181 For example, those
supporting legislation punishing animal abusers might point out that people who
abuse animals often go on to abuse human beings.182 To improve the lives of farm
animals, animal rights activists might point out the potential health risks to humans
from practices such as injecting farm animals with high doses of antibiotics that
remain in the slaughtered animals’ tissues only to be later ingested by
consumers.183 People who oppose the slaughter of animals for human consumption
can point to the health benefits of a vegetarian diet, including cancer prevention
and control.184
In the domestic violence arena, Adele Morrison uses interest convergence
theory to support a shift from a white-centered battered women discourse to a
multicultural version with battered women of color at the center.185 In
Deconstructing the Image Repertoire of Women of Color, Morrison explores the
ways in which whiteness permeates legal discussion of domestic violence to the
detriment of all victims of intimate abuse, but particularly victims of color.186 She
calls for a multicultural approach, arguing that battered white women’s interests
177.
Richard Delgado, Si Se Puede, But Who Gets the Gravy?, 11 MICH. J. RACE
& L. 9 (2005).
178.
Id. at 17–18.
179.
Id. at 18.
180.
Joseph Lubinski, Screw the Whales, Save Me! The Endangered Species Act,
Animal Protection, and Civil Rights, 4 J.L. SOC’Y 377 (2003).
181.
Id. at 407–11.
182.
Id. at 409.
183.
Id. at 410–11.
184.
Id.
185.
Adele M. Morrison, Deconstructing the Image Repertoire of Women of
Color: Changing the Domestic Violence (Dis)Course: Moving from White Victim to MultiCultural Survivor, 39 U.C. DAVIS L. REV. 1061, 1114–15 (2006).
186.
Id.
2007]
CULTURAL CONVERGENCE
939
converge with those of battered women of color in having a responsive legal
system.187
III. CULTURAL CONVERGENCE THEORY
Just as interest convergence theory helps us understand the forces that
may have motivated certain Supreme Court decisions beneficial to minorities such
as Brown and Hernandez, cultural convergence theory can help us understand why
certain cultural defense arguments seem to be more successful than others.
Cultural convergence is the idea that a “cultural defense” is more likely to succeed
when the cultural norms underlying an immigrant or minority defendant’s cultural
defense claim converge with the cultural norms of American society.188 Like
interest convergence theory, cultural convergence theory can be used to explain the
underlying forces behind a particular decision or series of decisions. It might also
be used as an affirmative tool of strategy or prediction.189 Cultural convergence,
however, focuses on the presence or absence of overlapping cultural norms as
opposed to converging interests.
Three generally successful cultural defenses illustrate cultural
convergence. A fourth type of cultural defense, which is rarely successful, reflects
cultural norm convergence in its successful application. These successful cultural
defenses often reinforce racial or ethnic stereotypes.
First, Asian immigrant men who have killed their unfaithful Asian
immigrant wives have successfully claimed that in light of their cultural
background, they were reasonably provoked into a heat of passion and should not
be convicted of murder. Such claims, however, are not culturally unique. In this
country, we have a long history of excusing American men who kill their
unfaithful wives.190 In other words, the reason behind the success of the Asian
immigrant man’s provocation claim may not be not so much because of his
immigrant status, but rather because his underlying claim is familiar and resonates
with the judge and jury. Moreover, while acceptance of such claims is often
viewed as a positive sign that Americans are willing to accept immigrants and their
187.
Id. at 1115.
188.
Not all successful “cultural defense” cases can be explained as the result of
cultural norm convergence. See, e.g., State v. Kargar, 679 A.2d 81 (Me. 1996) (vacating
conviction on two counts of gross sexual assault arising from Afghan father’s kissing of his
18-month-old son’s penis after considering testimony on the Afghani practice and custom of
kissing a young son’s penis to show love for the child); see also Wanderer & Connors,
supra note 6. However, given that most attempts to use culture as a defense tactic are
unsuccessful, the apparent convergence of cultural norms in many of the cases where
cultural evidence is successfully employed is all the more striking.
189.
In this Article, I use cultural convergence to explain the successful use of
cultural evidence in four types of cultural defense cases. While cultural convergence might
also be useful as an affirmative tool of strategy or prediction, my focus in this Article is on
cultural convergence as explanation. I leave for another day (or for other legal scholars) the
discussion of cultural convergence as an affirmative tool of strategy or prediction as well as
other possible applications of cultural convergence theory to explain trends in cases outside
the cultural defense arena.
190.
See LEE, supra note 27, ch. 1.
940
ARIZONA LAW REVIEW
[VOL. 49:911
different cultures, such acceptance also reflects and reinforces negative stereotypes
about Asian men as barbaric foreigners who do not value human life as much as
Americans do.
Second, Asian immigrant women who attempt to commit parent-child
suicide in response to spousal infidelity, but succeed only in killing the children,
are often found guilty of manslaughter rather than murder. While at first glance it
appears that the cultural background of the immigrant female defendant plays a
key role in mitigating murder charges down to manslaughter, it turns out that many
American women who kill their children under similar circumstances are also
convicted of manslaughter rather than murder. Gender role stereotyping, depicting
the woman as emotionally weak and dependent upon her husband for her
happiness, as opposed to cultural difference, may explain the mitigation in these
kinds of cases.
Third, when a Hmong man charged with rape claims he thought the sex
was consensual given the Hmong cultural practice of marriage by capture and the
prosecutor allows him to plead guilty to a lesser offense, it may appear at first
glance that the prosecutor is giving undue weight to the defendant’s cultural claim.
However, plea bargaining is not uncommon in America. In some jurisdictions, as
many as ninety-six percent of all criminal cases end in a plea agreement prior to
trial.191 In date rape cases in particular, it is fairly common for the prosecutor to
accede to a plea bargain because of the uncertainties involved in trying a “he
said/she said” case. In other words, the Hmong defendant succeeds in having his
rape charge mitigated not necessarily because the prosecutor places a high value
on cultural difference, but because the underlying claim reflects a familiar
American cultural norm. A defendant who reasonably believes a woman has
consented to sexual intercourse is not guilty of forcible rape. Accepting the Hmong
defendant’s claim not only comports with this tradition, it also reinforces negative
stereotypes about Asian males as misogynistic foreigners who mistreat women.
Finally, when an African-American man charged with a crime of violence
against a white man claims “Black Rage” or some other race-based deviance
defense and wins an acquittal of the most serious charges leveled against him,
cultural convergence is difficult to see because no comparable “White Rage”
defense would be available for a Caucasian charged similarly. Nonetheless,
cultural convergence can also help explain these cases. A Black Rage defense
reinforces stereotypes about Black men as dangerous, violent criminals—
stereotypes that prevail in our society today.192
191.
U.S. SENTENCING COMM’N, 2006 SOURCEBOOK OF FEDERAL SENTENCING
STATISTICS fig. c (2006); Brian Kleinhaus, Serving Two Masters: Evaluating the Criminal
or Civil Nature of the VWPA and MVRA Through the Lens of the Ex Post Facto Clause, the
Abatement Doctrine, and the Sixth Amendment, 73 FORDHAM L. REV. 2711, 2764 (2005).
Tina Olson reports that after passage of California’s Three Strikes law, “plea agreements [in
California] totaled ninety-one percent of the felony convictions.” Tina M. Olson, Strike
One, Ready for More? The Consequences of Plea Bargaining “First Strike” Offenders
Under California’s “Three Strikes” Law, 36 CAL. W. L. REV. 545, 561 (2000).
192.
See LEE, supra note 27, at 120–21; see also SHERENE H. RAZACK, LOOKING
WHITE PEOPLE IN THE EYE: GENDER, RACE, AND CULTURE IN COURTROOMS AND
2007]
CULTURAL CONVERGENCE
941
The successful cultural defense both resonates with dominant cultural
norms and is cabined or particularized through the cultural link so the legal
decision-maker does not feel a favorable decision will open the floodgates to
leniency. Judges, jurors, and prosecutors attempting to be culturally sensitive often
end up reinforcing negative stereotypes about the racial or ethnic group of the
defendant.
A. Asian Immigrant Men Who Kill Their Unfaithful Asian Immigrant Wives
When an Asian immigrant man kills his wife after discovering she has
been unfaithful, he may claim that his behavior was culturally motivated and that
therefore he should not be punished as a murderer. One of the most notorious of
these cases is People v. Chen.193 Dong Lu Chen, an immigrant from China, was
charged with second-degree murder for killing his wife by striking her eight times
over the head with a claw hammer after she confessed to adultery and refused to
have sex with him.194 At a bench trial, Chen’s attorney called Burton Pasternak, a
cultural anthropologist who had done fieldwork in China, to testify that Chen’s
violent reaction to his wife’s confession was not at all unusual given his Chinese
cultural background. Pasternak testified that “one could expect a Chinese to react
in a much more volatile, violent way to those circumstances” than an American
man195 because a wife’s adultery was considered a stain on the husband, who
would be viewed as unable to maintain control of his wife.196 In other words, it
was reasonable for Chen, a Chinese man, to become provoked by his wife’s
infidelity.197
Pasternak further testified that “in traditional Chinese culture, due to
societal beliefs concerning infidelity, a Chinese man might threaten to kill his wife
CLASSROOMS 60 (1998) (discussing the “culturalization of racism” wherein “Black
inferiority is attributed to ‘cultural deficiency, social inadequacy, and technological
underdevelopment’”).
193.
For a detailed account of the Chen case, see Volpp, (Mis)Identifying Culture,
supra note 6, at 64–77. For descriptions of other cases involving Asian immigrant men who
killed their Asian immigrant wives and made a cultural claim that they were provoked by
their wife’s infidelity, see Lee, supra note 27, at 113–17.
194.
See Chiu, The Cultural Defense, supra note 6, at 1053 (noting that
prosecutors initially charged Chen with second-degree murder, and that Chen was convicted
of second-degree manslaughter).
195.
Volpp, (Mis)Identifying Culture, supra note 6, at 66.
196.
Id. at 69.
197.
While some accounts of the Chen case report that the defense asserted was
insanity, Chen’s attorney, Stewart Orden, asserts that the thrust of the defense was that at
the moment of the attack, Chen was unable to form a specific intent to kill or seriously
injure. Email from Stewart Orden, attorney for Dong Lu Chen, to author (Mar. 15, 2007)
(on file with author). Orden also argued that Chen acted under the influence of an extreme
emotional disturbance (the Model Penal Code’s version of the provocation defense). See
Coleman, Culture, Cloaked in Mens Rea, supra note 6, at 985; Telephone Interview by
Philip Cardinale with Stewart Orden, attorney for Dong Lu Chen (Aug. 29, 2005) (“[The]
defense was that it was extreme emotional distress but it was so extreme as to render any
intentionality on [Chen’s] part to be nonexistent at the time he was striking her with the
hammer. He had formed no intent to cause her injury.”).
942
ARIZONA LAW REVIEW
[VOL. 49:911
if she commits adultery. However, the Chinese community usually stops him from
following through with his threats.”198 Because Chen was in America when he
discovered his wife’s adultery, he did not have the usual community safeguards in
place to stop him from killing his wife.199
Persuaded by these arguments, the judge presiding over Chen’s bench
trial acquitted Chen of second-degree murder and found him guilty of
manslaughter.200 He then sentenced Chen to five years of probation.201 Brooklyn
Supreme Court Justice Edward Pincus explained:
Were this crime committed by the defendant as someone who was
born and raised in America, or born elsewhere but primarily raised
in America, even in the Chinese American community, the Court
would have been constrained to find the defendant guilty of
manslaughter in the first degree. But, this Court cannot ignore . . .
the very cogent forceful testimony of Doctor Pasternak, who is,
perhaps, the greatest expert in America on China and interfamilial
relationships.202
The judge concluded that Chen “was the product of his culture. . . . The
culture was never an excuse, but it is something that made him crack more easily.
That was the factor, the cracking factor.”203
Although Chen’s case seems like an example of culture winning out over
all other considerations, cultural convergence may have contributed to the
outcome. Rather than being culturally unique, Chen’s claim of having acted
reasonably in response to his wife’s confession of adultery echoes claims of legally
adequate provocation made by countless American men who have killed their
198.
Nicole A. King, The Role of Culture in Psychology: A Look at Mental Illness
and the “Cultural Defense,” 7 TULSA J. COMP. & INT’L L. 199, 221 (1999) (citing Gallin,
supra note 6, at 730).
199.
See Volpp, (Mis)Identifying Culture, supra note 6, at 73. Volpp points out
that Pasternak’s “bizarre portrayal of divorce and adultery in China in fact had little basis in
reality.” Id. at 70. When the prosecutor cross-examined Pasternak, he “admitted he could
not recall a single instance in which a man in China killed his wife [for being unfaithful] or
having ever heard about such an event, yet he suggested this was accepted in China.” Id.
(emphasis in original).
200.
There is some confusion over whether Justice Pincus reduced the charge
from murder to manslaughter, or merely reduced the charge from first-degree manslaughter
to second-degree manslaughter. Compare Chiu, The Cultural Defense, supra note 6, at 1053
(noting that prosecutors initially charged Chen with second-degree murder, but that Chen
was convicted of second-degree manslaughter), with Hoeffel, supra note 21, at 316 (stating
that Justice Pincus reduced the charge from first-degree manslaughter to second-degree
manslaughter). According to Stewart Orden, Chen’s attorney, Justice Pincus acquitted Chen
of second-degree murder and found him guilty of the lesser included offense of
manslaughter. Email from Stewart Orden to author, supra note 197. The judge found Chen
guilty of second-degree manslaughter. Volpp, (Mis)Identifying Culture, supra note 6, at 64.
201.
Volpp, (Mis)Identifying Culture, supra note 6, at 64.
202.
Id. at 73 (quoting Transcript of Record at 301–02, People v. Chen, No. 877774 (N.Y. Sup. Ct. Dec. 2, 1988)).
203.
Chiu, The Cultural Defense, supra note 6, at 1053.
2007]
CULTURAL CONVERGENCE
943
unfaithful wives.204 At early common law, a husband who killed his wife after
catching her in flagrante delicto (i.e. in the act of adultery) fell into one of the few
categories of legally adequate provocation that automatically mitigated a murder
charge down to voluntary manslaughter. In some jurisdictions, a man who killed
under such circumstances was guilty of no crime at all.205 In recent times,
American men who have killed their female partners (or former partners) in
response to acts as innocuous as dancing with another man have succeeded in
mitigating their murder charges down to manslaughter by arguing they were acting
under an extreme emotional disturbance, the Model Penal Code’s version of the
provocation defense.206 Given this history, it is not surprising that in many cases in
which an Asian immigrant man has killed his wife in response to her infidelity, the
defendant benefits from the provocation mitigation.207 He benefits precisely
because his claim is familiar.208
Justice Pincus would likely deny that he granted the provocation
mitigation because of any sympathy for men who kill in response to wifely
infidelity. Indeed, he was careful to explain that he would have decided the case
differently had Chen been an American, or even had Chen been a Chinese
204.
See LEE, supra note 27, at 114 (“American men who kill their wives, like
Chen, often base their claim of reasonableness on the threat to masculine honor and identity
posed by a wife’s sexual infidelity.”).
205.
Id. at 20 (noting that Georgia, Texas, Utah, and New Mexico deemed the
husband’s killing of his wife or her lover after catching them in the act of adultery a
justifiable homicide).
206.
Victoria Nourse, Passion’s Progress: Modern Law Reform and the
Provocation Defense, 106 YALE L.J. 1331, 1405 (1997); see MODEL PENAL CODE §
210.3(1)(b).
207.
For example, Chanh Van Duong, a Vietnamese immigrant, shot and killed
his estranged wife outside a courtroom because she wanted a divorce. Duong was charged
with murder. He argued he was provoked into a sudden heat of passion when he saw his
wife with her new boyfriend and was convicted of manslaughter. Briefing, COLO. SPRINGS
GAZETTE TELEGRAPH, Aug. 12, 1998, at B7. Similarly, May Aphaylath, a Laotian man,
killed his wife after finding her on the phone with her former boyfriend. At his trial for
murder, Aphaylath’s attorneys tried to introduce expert witnesses who could testify that in
Laos, a husband whose wife receives calls from a single man can be expected to lose his
self-control. The trial judge refused to allow such testimony and Aphaylath was convicted
of murder. Aphaylath’s conviction was reversed on the ground that the expert testimony
should have been admitted. Aphaylath then pled guilty to manslaughter. Associated Press,
Refugee to Get New Murder Trial, N.Y. TIMES, Nov. 16, 1986, at 54; Robert Bellafiore,
Court Overturns Laotian Refugee’s Murder Conviction, UPI, Nov. 13, 1986; New Trial in
Killing, NEWSDAY, Nov. 14, 1986.
208.
Coleman argues that in finding Chen guilty of second-degree manslaughter,
reckless homicide without intent, Justice Pincus gave Chen more of a break than a similarly
situated non-Chinese American would have received. Coleman, Culture, Cloaked in Mens
Rea, supra note 6, at 987. While it is true that one who is provoked into a heat of passion
normally will have his (or her) murder charge reduced to voluntary manslaughter as this is
what the law permits, a judge or jury has the power to be more lenient than otherwise
required by the law. Chen is not the only man in the United States who has killed his wife in
response to her infidelity and received more leniency than what the law would require. See
LEE, supra note 27, ch. 1.
944
ARIZONA LAW REVIEW
[VOL. 49:911
American.209 Ostensibly, Chen’s Asian immigrant culture was the deciding factor
for the judge. Social science research on cognition, however, suggests that
expressed attitudes often mask true attitudes as the subject may feel the need to
conform to socially accepted norms.210
Given the contested meaning of spousal infidelity killings in American
society today, the judge may have relied on “culture” as reflected in anthropologist
Burton Pasternak’s rendition of Chinese culture to justify a decision that may have
otherwise appeared gender biased. In so doing, his decision to grant leniency to
Chen reinforced the long-standing American cultural norm that empathizes with a
husband who kills after discovering his wife has committed adultery.211
Sarah Song notes that patriarchal mainstream norms often shape the
frameworks within which minority claims are evaluated.212 According to Song,
“there is a striking congruence in the norms of majority and minority cultures
regarding the realm of intimate relations between the sexes,” a congruence that
helps us understand why cultural defense claims tend to be successful when they
involve intimate sexual relations and stories of betrayal.213 This phenomenon is not
unique to American courts. Anne Phillips observes that cultural arguments raised
209.
See Volpp, (Mis)Identifying Culture, supra note 6, at 73 (quoting Transcript
of Record at 301–02, People v. Chen, No. 87-7774 (N.Y. Sup. Ct. Dec. 2, 1988)).
210
See Robert S. Chang & Rose Cuison Villazor, “Testing the ‘Model Minority
Myth’”: A Case of Weak Empiricism, 2007 NW. U. L. REV. COLLOQUY 101, 106 (2007)
(discussing the gap between attitudes as expressed and people’s “true” attitudes). One
empirical study, for example, tested bias against the disabled. Vanessa Lynn Ewing et al.,
Student Prejudice Against Gay Male and Lesbian Lecturers, 143 J. SOC. PSYCH. 569 (2003)
(discussing M.L. Snyder et al., Avoidance of the Handicapped: An Attributional Ambiguity
Analysis, 37 J. PERSONALITY & SOC. PSYCH. 2297 (1979)). Participants in that study were
asked to choose one of two rooms in which to watch a movie. The researchers found that
when the same movie was playing in both rooms, and a disabled person sat in one room
while the other room was empty, most participants chose to sit in the room with the person
in the wheelchair, and sat down next to the disabled person. When researchers offered two
different movies, one in an empty room, and one playing in a room with a disabled person,
most participants chose to watch the movie in the empty room, regardless of the movie that
was playing there. Robert Chang and Rose Cuison Villazor explain these results:
The results from the first situation accord with social norms about how
one should act towards those with different abilities. Though participants
might prefer not to sit next to the person in the wheelchair, the fear of
appearing prejudiced led them to overcome that preference. The results
from the second situation, though, show that the force of the social
norms is insufficient to overcome the participants’ preferences when
they can justify or rationalize their behavior as being based on movie
choice and not prejudice. Thus, . . . conclusions drawn from the
expressed attitudes [in the General Social Survey context] are likely to
tell us little about real world discrimination.
Chang & Villazor, supra, at 6.
211.
See LEE, supra note 27, ch. 1.
212.
Sarah Song, Majority Norms, Multiculturalism, and Gender Equality, 99 AM.
POL. SCI. REV. 473, 480 (2005) (calling the support offered by mainstream gender norms to
gender hierarchies in minority cultural communities the “congruence effect”).
213.
Id.
2007]
CULTURAL CONVERGENCE
945
by minority defendants in English cases are most effective when they resonate
with mainstream patriarchal English conventions.214
An additional dynamic may underlie the appeal of culture in cases
involving Asian men who kill their unfaithful wives: the reinforcement of negative
stereotypes about Asians and Asian Americans. While less empirical research has
been conducted on stereotypes about Asians than about other minority groups,
those in the Asian American community are well aware of the many stereotypes
about Asians that others consciously or unconsciously embrace.215
214.
Anne Phillips, When Culture Means Gender: Issues of Cultural Defence in
the English Courts, 4 MOD. L. REV. 510 (2003).
215.
Several Asian American scholars have written about these stereotypes. See,
e.g., ROBERT S. CHANG, DISORIENTED: ASIAN AMERICANS, LAW, AND THE NATION-STATE 48
(1999) [hereinafter CHANG, DISORIENTED]; LEE, supra note 27, at 159–74 (discussing three
stereotypes about Asian Americans, including the Asian-as-Foreigner stereotype, the Asianas-Model Minority stereotype, and the Asian-as-Martial Artist stereotype); FRANK H. WU,
YELLOW: RACE IN AMERICA BEYOND BLACK AND WHITE (2002); ERIC K. YAMAMOTO ET AL.,
RACE, RIGHTS AND REPARATION: LAW AND THE JAPANESE AMERICAN INTERNMENT (2001)
[hereinafter YAMAMOTO ET AL., RACE, RIGHTS AND REPARATION]; Keith Aoki, “Foreignness” and Asian American Identities: Yellowface, World War II Propaganda, and
Bifurcated Racial Stereotypes, 4 ASIAN PAC. AM. L.J. 1, 1 (1996) (“From the beginning of
judicial review of first Chinese Americans and then Japanese Americans in the nineteenth
century, there has been a persistent view that the racial identity of Asians within the United
States, even those born here and culturally assimilated, [was] distinctly ‘foreign.’” (citation
omitted)); Chang & Villazor, supra note 210 (discussing the model minority myth); Robert
S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, PostStructuralism, and Narrative Space, 81 CAL. L. REV. 1241, 1243 (1993) [hereinafter Chang,
Toward an Asian American Legal Scholarship]; Pat K. Chew, Asian Americans: The
“Reticent” Minority and Their Paradoxes, 36 WM. & MARY L. REV. 1, 14 (1994)
(discussing the Asian-as-Foreigner stereotype and noting that historically, Americans have
viewed Japanese immigrants as militaristic and aggressive); Gabriel J. Chin et al., Beyond
Self-Interest: Asian Pacific Americans Toward a Community of Justice: A Policy Analysis
of Affirmative Action, 4 UCLA ASIAN PAC. AM. L.J. 129 (1996); Sumi K. Cho, Converging
Stereotypes in Racialized Sexual Harassment: Where the Model Minority Meets Suzie
Wong, 1 J. GENDER RACE & JUST. 177, 186 (1997) (examining the ways in which the model
minority stereotype converges with “stock portrayal[s] of obedient and servile Asian Pacific
American women in popular culture”); Neil Gotanda, Asian American Rights and the “Miss
Saigon Syndrome,” in ASIAN AMERICANS AND THE SUPREME COURT 1087 (Hyung-Chan
Kim ed., 1994) [hereinafter Gotanda, Asian American Rights and the “Miss Saigon
Syndrome”]; Cynthia Kwei Yung Lee, Beyond Black and White: Racializing Asian
Americans in a Society Obsessed with O.J., 6 HASTINGS WOMEN’S L.J. 165 (1995)
(discussing racial stereotypes about the Asian Americans involved in the O.J. Simpson
trial); Natsu Taylor Saito, Model Minority, Yellow Peril: Functions of “Foreignness” in the
Construction of Asian American Legal Identity, 4 ASIAN L.J. 71, 71 (1997) (“By
characterizing those of Asian descent as ‘foreigners,’ dominant society is able to slip freely
from the model minority to the yellow peril label.”); Leti Volpp, On Culture, Difference,
and Domestic Violence, 11 AM. U. J. GENDER SOC. POL’Y & L. 393, 397 (2003) (noting that
many writers have “assert[ed] that there is something more misogynistic about Asian
immigrant communities than ‘our own’”); Frank H. Wu, Neither Black Nor White: Asian
Americans and Affirmative Action, 15 B.C. THIRD WORLD L.J. 225 (1995) [hereinafter Wu,
Neither Black Nor White] (providing both a historical account of the model minority myth
946
ARIZONA LAW REVIEW
[VOL. 49:911
One common stereotype about Asian Americans is the “Asian-as-Model
Minority” stereotype which “depicts Asian Americans as achieving success
through cultural values and hard work.”216 The “Asian-as-Model Minority”
stereotype works as both a blessing and a curse: it supports the view that Asian
Americans are smart and hard-working, but it can foster hostility against persons
of Asian descent who are seen as a monolithic group taking valuable jobs and
educational opportunities away from “real” Americans.217
For example, Asian Americans are often resented for taking up space at
elite schools. At the University of California at Los Angeles (“UCLA”), a common
joke for a while was that UCLA stood for United Caucasians Lost Among
Asians.218 Sometimes this resentment against Asians can lead to adverse changes
in admissions policies. In 1984, for example, the University of California at
Berkeley (“U.C. Berkeley”), regarded as the flagship of the University of
California system, implemented a policy raising the requisite verbal score for
and an explanation of the modern model minority myth); Eric K. Yamamoto, Friend, or Foe
or Something Else: Social Meanings of Redress and Reparations, 20 DENV. J. INT’L L. &
POL’Y 223, 236 (1992) (noting that the unspoken message conveyed through Japan bashing
is that “unscrupulous Asians [are] stealing United States business opportunities”); Rhoda J.
Yen, Racial Stereotyping of Asians and Asian Americans and Its Effect on Criminal Justice:
A Reflection on the Wayne Lo Case, 7 ASIAN L.J. 1 (2000) (discussing the Asian-as-Model
Minority and Asian-as-Yellow Peril stereotypes); Neil Gotanda, “Other Non-whites” in
American Legal History: A Review of Justice at War, 85 COLUM. L. REV. 1186, 1191 (1985)
(book review) (discussing the “notion of ‘foreignness’” as one of the critical features of
legal treatment of Japanese Americans and Chinese Americans); Jerry Kang, Note, Racial
Violence Against Asian Americans, 106 HARV. L. REV. 1926, 1935 (1993) (noting that
during times of economic strife, racial hostility towards all Asian Americans increases
because of “the misperception that Asian Americans ‘steal’ valuable” job opportunities
from more deserving Americans).
216.
Chang & Villazor, supra note 210, at 101. Rhoda Yen notes that “the post1965 Asian immigrants were largely drawn from the wealthiest and most educated groups in
their native countries” and that “[a]s exposure to this minority group increased, white
Americans may have formed their ideas of Asian Americans from the limited number of
wealthy, educated Asians who lived and worked among them.” Yen, supra note 215, at 2–3.
For additional discussion of the model minority stereotype, see YAMAMOTO ET AL., RACE,
RIGHTS AND REPARATION, supra note 215, at 267–69; Chew, supra note 215; Chin et al.,
supra note 215; Saito, supra note 215; Wu, Neither Black Nor White, supra note 215.
217.
In Testing the “Model Minority Myth,” Miranda Oshige McGowan and
James Lindgren argue that empirical data do not support the belief that white Americans
hold negative stereotypes associated with viewing Asian Americans as a “model minority.”
Miranda Oshige McGowan & James Lindgren, Testing the “Model Minority Myth,” 100
NW. U. L. REV. 331 (2006). In response, Robert Chang and Rose Cuison Villazor show that
McGowan and Lindgren’s argument is flawed because it relies heavily on data produced by
asking white respondents about their racial attitudes in face-to-face interviews. Chang and
Villazor assert that this methodology is unlikely to yield true data about racial attitudes as it
is infected with problems of response falsification and cannot ferret out subtler forms of
racial bias. Chang & Villazor, supra note 210, at 103.
218.
John Schwartz et al., The “Eastern Capital” of Asia, NEWSWEEK, Feb. 22,
1988, at 56 (“At UCLA, where Asians make up upwards of 18 percent of the student body,
Anglo students joke that the school’s initials really stand for ‘United Caucasians Lost
Among Asians.’”).
2007]
CULTURAL CONVERGENCE
947
immigrants on the SAT to 400 and automatically redirecting applications of Asian
American students eligible for the Educational Opportunity Program to other U.C.
campuses.219 This policy had the effect of substantially limiting the number of
Asians admitted to U.C. Berkeley.220 Initially, university officials denied that the
minimum SAT score for immigrants policy had been implemented, claiming that
the policy was discussed orally, but never adopted in written form.221 However,
“[f]ollowing two years of heated, public exchanges over the reasons behind the
unexpected drop in [Asian American admissions] in 1984 and mounting public
skepticism over the university’s handling of the Asian American concerns, the
California Auditor General, acting on a request by the State Legislature, conducted
an extensive, independent audit of Berkeley’s admissions records for the period
1981 to 1987.”222 Following this audit, the SAT policy memo surfaced223 and with
it an apology from Berkeley Chancellor Ira Michael Heyman to the Asian
community on the University’s lack of sensitivity in handling the charges of bias
in Asian admissions.224
Another common trope is the “Asian-as-Foreigner” stereotype. Neil
Gotanda notes that “[f]rom the beginning of judicial review of first Chinese
Americans and then Japanese Americans in the nineteenth century, there has been
a persistent view that the racial identity of Asians within the United States, even
those born here, and culturally assimilated, [is] distinctly ‘foreign.’”225 This
perception that persons of Asian descent are foreign-born persists today. Wellmeaning Americans will often remark that they are impressed at how well an
Asian American speaks English. The unstated assumption is that this Asian person
came from a country in Asia and had to learn English as a second language.
Sometimes the assumption of foreignness becomes very clear as when someone
asks an Asian American where he or she comes from. When the Asian American
replies, “Oakland, California,” the questioner persists, often asking, “No, I mean
where do you really come from?”226
219.
Dana Y. Takagi, From Discrimination to Affirmative Action: Facts in the
Asian American Admissions Controversy, 37 SOC. PROBS. 578, 580 (1990).
220.
The number of Asian American freshmen at U.C. Berkeley dropped from
1,239 in 1983 to 1,008 in 1984. L. Ling-Chi Wang, Meritocracy and Diversity in Higher
Education: Discrimination Against Asian Americans in the Post-Bakke Era, 4 INST. FOR
SOC. SCI. RES. 1, 5 (1988). Wang notes that “with the exception of [Filipino] Americans,
who were protected by an affirmative action program, every Asian American sub-group
registered a decline” in admissions. Id. “The sharpest reduction occurred among Chinese
American freshmen, dropping from 609 in 1983 to 418 in 1984 or by 30% in one year. By
comparison, White freshmen admissions declined by only 4%, from 2,425 to 2,327.” Id.;
see also Grace W. Tsuang, Note, Assuring Equal Access of Asian Americans to Highly
Selective Universities, 98 YALE L.J. 659, 674 (1989).
221.
Takagi, supra note 219, at 580 n.2.
222.
Wang, supra note 220, at 6.
223.
Takagi, supra note 219, at 580 n.2.
224.
Id. at 587.
225.
Gotanda, Asian American Rights and the “Miss Saigon Syndrome,” supra
note 215, at 1095.
226.
Professor Pat Chew recounts the following:
948
ARIZONA LAW REVIEW
[VOL. 49:911
While the “Asian-as-Foreigner” stereotype seems innocuous on the
surface, it can contribute to acts of violence against Asians. Jerry Kang notes that
Asian Americans are often targets of robbery because of the misperception that all
Asians distrust banks and carry a lot of cash.227 In another example of violence
against Asian Americans arising from perceptions of foreignness, Vincent Chin, a
Chinese American man, was beaten to death with a baseball bat in Detroit,
Michigan by two men who thought Chin was Japanese and somehow responsible
for declining American automobile sales.228 Chin had gone to a strip bar to
celebrate his upcoming marriage. Ronald Ebens and Michael Nitz, two white men,
were sitting directly across from Chin and his group of friends. They started
calling Chin a “Nip” (a derogatory term for a person of Japanese descent, derived
from the word “Nippon” which is the Japanese word for Japan) and one yelled,
“It’s because of you little mother fuckers that we’re out of work.” Chin got up and
went over to Ebens and threw a punch. A scuffle ensued and Chin, Ebens and Nitz
were asked to leave the bar. Ebens retrieved a baseball bat from Nitz’s car and
began chasing Chin. When the two men caught up with him, Ebens struck Chin
repeatedly in the head with the baseball bat. Chin died four days later. As Robert
Chang explains:
People like Chin were making people like Ebens and Nitz lose their
jobs. Even though Ebens was still employed as a foreman in an
automobile plant, he clearly identified with laid-off autoworkers.
But there was more. Chin was displacing them as (the rightful)
consumers of sexual attention. Here we have economics, race,
gender, and sexuality coming together in interesting ways. Loss of
jobs entails a loss of masculinity. The loss of masculinity was
caused by a racial and foreign Other, an Asian man who in many
ways was just like them. The bonding that might normally take
When people first meet me, it is not unusual for them to comment,
“You speak so well, you don’t have an accent,” intending their
observation to be a compliment. “Where are you from?” they continue,
expecting my response to be a more foreign and exotic place than Texas
or Pennsylvania.
A tall red-haired, casually dressed gentleman that I didn’t know
recently knocked on my office door. “Yes?” I greeted. “Sorry to interrupt
you,” he stammered, “I was visiting the law school and I saw the name
on your door, and old family friends are named ‘Chew,’ and I thought
you might be related, but” he paused, “I can see I’m wrong. They’re
American.”
Chew, supra note 215, at 33 (emphasis added); see also LEE, supra note 27, at 165–70
(discussing the Asian-as-Foreigner stereotype).
227.
Kang, supra note 215.
228.
United States v. Ebens, 800 F.2d 1422, 1427 (6th Cir. 1986), abrogated on
other grounds by Huddleston v. United States, 485 U.S. 681 (1988); Chang, Toward an
Asian American Legal Scholarship, supra note 215, at 1252–53; Paula C. Johnson, The
Social Construction of Identity in Criminal Cases: Cinema Verite and the Pedagogy of
Vincent Chin, 1 MICH. J. RACE & L. 347 (1996); Cynthia Kwei Yung Lee, Race and SelfDefense: Toward a Normative Construction of Reasonableness, 81 MINN. L. REV. 367
(1996); WHO KILLED VINCENT CHIN? (Film News Now Foundation & WTVS-Detroit Public
Television 1988).
2007]
CULTURAL CONVERGENCE
949
place between men in a strip club is disrupted by Chin’s Asianness.
Further, the Asian man may be improperly consuming the sexual
attention of a white woman, which, in part, he is able to do because
he is doing well, economically, by displacing people like Ebens and
Nitz from their jobs. We have, then, a double displacement along
with a threat to racial purity, a threat to the very whiteness that
provides their sense of place and entitlement in America.229
The “Asian-as-Foreigner” stereotype spawns other deeply entrenched
perceptions about Asians and Asian Americans. Asian culture, in contrast to
Western culture, is considered uniquely misogynistic and patriarchal.230 Asians are
thought not to value human life to the same extent as Americans. For example,
Keith Aoki writes about “the enduring popularity in the United States of the harikiri/kamikaze stereotype, which began circulating during World War II as
supposed evidence of the lack of value placed on individual human life by the
Japanese.”231 Darrell Hamamoto notes that a similar image of the Vietnamese as
ruthless individuals who placed little or no value on human life surfaced during the
Vietnam War.232 The confluence of these images contributes to an “Asian-asYellow Peril” stereotype, which reflects the view that persons of Asian descent are
not just foreigners, but foreigners with inferior cultural practices and behaviors.233
In Dong Lu Chen’s case, the lenient sentence ostensibly based on Chen’s cultural
background reinforced the popular perception that Chinese men are more
patriarchal and misogynistic than American men.
In explaining his verdict and sentence in cultural terms, Justice Pincus
was giving Western culture “an implicit . . . pat on the back for [its]
progressiveness and fairness.”234 At the same time, under the guise of cultural
sensitivity, the judge’s ruling strengthened the image of a patriarchal Chinese
culture where men brutally beat their unfaithful wives to death.235 American
mainstream culture “was the implicit backdrop”236—a place where this kind of
229.
CHANG, DISORIENTED, supra note 215, at 24–25.
230.
Cho, supra note 215, at 184 (noting that in the 19th century, “[s]ensational
newspaper headlines reflected the widespread characterization[s] of [Asian Pacific
American] women as the abused chattel of brutal Chinese proprietors”); Yen Ling Shek,
Asian American Masculinity: A Review of the Literature, 14 J. MEN’S STUD. 379, 381
(2006) (noting that the popular American movie The Joy Luck Club portrayed Asian
American men “as misogynistic and cheap”); Volpp, supra note 215, at 393 (noting that
legal scholars often depict Asian immigrant communities as more misogynistic than
Western communities).
231.
Aoki, supra note 215, at 38.
232.
DARRELL Y. HAMAMOTO, MONITORED PERIL: ASIAN AMERICANS AND THE
POLITICS OF TV REPRESENTATION 156 (1994) (“[T]he dehumanized Asians—‘dinks,’
‘gooks,’ and ‘slopes’—place a low premium on life itself.”).
233.
Yen, supra note 215, at 6; see also Saito, supra note 215, at 90–93
(identifying harms to Asian Americans arising from the ascription of foreignness).
234.
Sonia N. Lawrence, Cultural (In)Sensitivity: The Dangers of a Simplified
Approach to Culture in the Courtroom, 13 CAN. J. WOMEN & L. 107, 117 (2001).
235.
See id. at 113 (discussing the bail hearing for a Sri Lankan man charged with
beating and burning two female cousins for talking to boys at school).
236.
Id.
950
ARIZONA LAW REVIEW
[VOL. 49:911
behavior is unacceptable.237 Like many judges and jurors deciding guilt or
punishment in cultural defense cases, Justice Pincus was unable to discern the
similarities between Chinese cultural practices and Western practices.238
What happens in courtrooms where cultural claims are asserted,
according to Sonia Lawrence, “can be seen as a modern project of racialization,
namely a more ‘sophisticated’ version of the blunt attribution of inferior traits to
non-Whites that thereby attaches the inferiority label not to the individuals but
rather to their culture.”239 For example, in cases involving dowry murders, “an
aspect of the phenomenon dissimilar to the experience in Western cultures, the use
of fire as a murder weapon, becomes the central focus of the ‘Othering’ project.”240
Any similarity to Western cultural practices such as domestic violence is
“systematically effaced and obscured through a selective gaze and presentation.”241
Thus, when an American burns his wife or girlfriend,242 the defendant’s actions are
rarely seen as a reflection of American culture. Leti Volpp explains:
We identify sexual violence in immigrant[s] of color and Third
World communities as cultural, while failing to recognize the
cultural aspects of sexual violence affecting white mainstream
women. This is related to the general failure to look at the behavior
of white persons as cultural, while always ascribing the label of
culture to the behavior of minority groups.243
One problem with the reliance on culture to justify a lenient sentence or
verdict is that an essentialized view of the defendant’s culture tends to emerge.244
237.
See id. at 117.
238.
See id. (“A crucial aspect of the courts’ approach to culture is the seeming
inability of the judge’s gaze to discern similarity between ‘Third World’ cultural practices
and those ‘Western’ ones with which the judge is deeply familiar and adjudicates every
day.”); Muneer I. Ahmad, A Rage Shared by Law: Post September 11 Racial Violence as
Crimes of Passion, 92 CAL. L. REV. 1259, 1308 (2004) (“Honor crimes in the Muslim world
have become a topic of great interest in the West in recent years, but far less attention has
been paid to how violence in defense of honor operates in the United States.”).
239.
Lawrence, supra note 234, at 112.
240.
Id. at 116.
241.
Id.
242.
See Ruben Castaneda, “He Said He Wanted to Fry Me like Crisco Grease,”
WASH. POST, Apr. 26, 2006, at B1 (On October 10, 2006, Roger Hargrave walked into a TMobile store in Clinton, Maryland where his wife Yvette Cade was working, poured
gasoline onto her head and shoulders and set her on fire.); Developments in Los Angeles
County; Man Sets Wife, Mother Afire, Then Surrenders, L.A. TIMES, Feb. 18, 2000, at B4
(A man walked into a police station in Southern California and told police that he had
doused his wife and her mother with gasoline and set them afire.); Allison Klein & Philip
Rucker, Woman Set Afire in Landover, WASH. POST, July 30, 2006, at C1 (A “landscaper
doused his girlfriend with gasoline and set her on fire” in Prince George’s County,
Maryland on July 29, 2006.); Kris Mayes, Woman Set Afire Was Abused, ST. PETERSBURG
TIMES, July 29, 1998, at 1B; Eve Sullivan, Man Set Fiancée on Fire, ADVOCATE, Jan. 13,
2004, at A1 (A Stamford, Connecticut man was charged with attempted murder after
dousing his 26 year-old fiancée with gasoline and setting her on fire in his van).
243.
Leti Volpp, Feminism and Multiculturalism, 101 COLUM. L. REV. 1181, 1189
(2001).
244.
Lawrence, supra note 234.
2007]
CULTURAL CONVERGENCE
951
Culture is seen through the defendant’s eyes, and the end result is a submerging of
other views of that culture and an obscuring of the fact that cultural norms change
over time.245 In the Chen case, Burton Pasternak suggested that Chinese culture is
uniquely patriarchal, a place where Chinese men feel entitled to fly out of control
and react with violence if they find out their wife has been unfaithful. While this
image of China might have been an accurate reflection of Chinese culture in years
long past, it is questionable whether it accurately reflects culture in today’s China,
a China that has been communist since 1949 and that at least on paper sees men
and women as equal comrades in the proletarian struggle.
B. Asian Immigrant Women Who Kill Their Children in Response to Spousal
Infidelity
Another type of case in which cultural evidence seems to be successfully
deployed involves Asian immigrant women who kill their young children, then
claim they were so distraught over the discovery that their husbands were seeing
other women that they attempted to commit parent-child suicide. In Japan, this
practice even has a name: oya-ko shinju.246 The Japanese mother who decides to
commit suicide feels obligated to kill her children as well so they are not left in
this world without a mother to raise them.247
In People v. Kimura, for example, a Japanese immigrant woman who
discovered that her husband had been having an affair walked into the Pacific
Ocean with her two young children in an attempt to kill herself and her children.
Kimura was rescued, but Kazutaka, her four-year-old son, and Yuri, her sixmonth-old daughter, drowned.248 When Kimura was charged with two counts of
first-degree murder and felony child endangerment, the Japanese-American
community rallied behind her and gathered more than 25,000 signatures asking for
leniency.249 Subsequently, the prosecutor allowed Kimura to plead guilty to
manslaughter, and the judge imposed a sentence of five years of probation and one
year in jail.250 Since Kimura had already been in jail for more than a year, she
received credit for time served and was released immediately.251 The prosecutor’s
decision to plea bargain and the judge’s decision to impose a lenient sentence
245.
Id.; Volpp, supra note 3, at 1589–93 (noting that culture is relational and
fluid and that it is contested within communities).
246.
Matsumoto, supra note 6, at 510–16.
247.
Chiu, supra note 4, at 1353. Chiu writes as follows:
If Fumiko Kimura had been successful in taking not just her childrens’
lives but also her own life, her act of oya-ko shinju would have
constituted one final act of good parenting. In other words, “it is more
merciful to kill children than to leave them in the cruel world without
parental protection.”
Id. (quoting MAMORU IGA, THE THORN IN THE CHRYSANTHEMUM: SUICIDE AND ECONOMIC
SUCCESS IN JAPAN 18 (1986)).
248.
Goel, supra note 6, at 443; Woo, supra note 6, at 403.
249.
Woo, supra note 6, at 404.
250.
Goel, supra note 6, at 443–44.
251.
Matsumoto, supra note 6, at 524.
952
ARIZONA LAW REVIEW
[VOL. 49:911
appeared to be influenced by the consideration that had Kimura been in her native
country, Japan, she would have been looked upon with extreme sympathy.252
Critics of the cultural defense have compared Kimura to Susan Smith, the
American woman who drowned her two young children by strapping them into
their car seats, then pushing her car into a lake.253 Smith was convicted of firstdegree murder and sentenced to life in prison with the possibility of parole.254
Even though both cases concerned mothers who killed their children, the Smith
case is only superficially analogous to Kimura.255 First, unlike Kimura, Smith
never attempted to kill herself.256 Smith strapped her kids into their car seats and
pushed her car into the lake, not directly endangering her own life. Second, at least
according to the government’s theory, the reason Smith killed her children was not
to protect them from living in this world without a mother to care for them, but to
please a former boyfriend who had made it clear that he was not interested in
continuing a relationship with a single mother burdened with two young
children.257
The manslaughter conviction Kimura received is actually consistent with
the manslaughter convictions received by the majority of American women who
kill their young children.258 It was Susan Smith’s murder conviction and life
sentence that were not in keeping with the norm. As Daina Chiu observes:
Kimura’s sentence of probation and counseling highlights how the
mainstream recognizes similarity (or assumes similarity) when
different cultural values or precepts are perceived to be congruent.
The favorable legal treatment of Fumiko Kimura derives from the
Anglo-American cultural view that women who kill their children
are “victims in need of sympathy, support, and psychiatric
treatment.” Women are “assumed to be inherently passive, gentle,
and tolerant; and mothers are assumed to be nurturing, caring and
altruistic. It is an easy step, therefore, to assume that a ‘normal’
252.
Id. at 512 n.29 (noting that in one study, fourteen percent of well-adjusted
Japanese women responded that they would have done the same thing as the mother who
attempts parent-child suicide upon learning of her husband’s infidelity).
253.
See, e.g., Coleman, supra note 3, at 1142 (opining that “the facts of the Smith
case were, in all relevant aspects other than culture, the same as those in Kimura”).
254.
Gary Henderson & Clay Murphy, Smith Verdict Met with Mixed Reaction in
Union, HERALD-J., July 29, 1995, at A1.
255.
See Volpp, supra note 6, at 1583–85 (discussing the misleading analogy
between parent-suicide cases and the Susan Smith case).
256.
Id. at 1583.
257.
See Rick Bragg, Smith Jury Hears of 2 Little Bodies, and a Letter, in the
Lake, N.Y. TIMES, July 20, 1995, at A16 (reporting that Tom Findlay, Susan Smith’s former
lover, wrote a letter telling Smith that he did not want a relationship that included children).
258.
See Michelle Oberman, Mothers Who Kill: Coming to Terms with Modern
American Infanticide, 34 AM. CRIM. L. REV. 1, 7 (1996) (noting that most countries,
including the United States, “articulate lesser penalties for homicides committed by mothers
against children”); Jason Wolfe, Maine’s Laws Show Leniency for Child Killers, PORTLAND
PRESS HERALD, July 12, 1998, at 1A (noting “[t]he vast majority of the time, parents and
caregivers who kill are charged with manslaughter, not murder”); see also LEE, supra note
27, at 123 n.125.
2007]
CULTURAL CONVERGENCE
953
woman could surely not have acted in such a way. She must have
been ‘mad’ to kill her own child.”259
Kimura apparently benefited from these underlying Anglo-American cultural
norms. Even though the Kimura case is often presented as an example of a
successful use of cultural evidence, her cultural claim may not have succeeded had
it not resonated with Anglo-American norms.
Another case involving an Asian mother who killed her child and then
tried but failed to kill herself is People v. Wu.260 Helen Wu was initially convicted
of second-degree murder and sentenced to a term of fifteen years to life.261 She
appealed, claiming the trial court erred in refusing to give a requested jury
instruction on how her cultural background might have affected her state of mind
at the time she killed her son.262 The court of appeals agreed with Wu, reversed her
murder conviction, and remanded the case, ordering the trial court to instruct jurors
on retrial that they could consider Wu’s cultural background in deciding whether
she possessed the mental state necessary for a murder conviction.263 On retrial, Wu
was convicted of voluntary manslaughter.264
Wu’s claim that her cultural background influenced her behavior does not
seem as compelling as Kimura’s claim. Wu killed her nine-year-old son whom she
had not seen or taken care of in years.265 Wu left her son when he was just a
newborn because she was afraid of damage to her personal reputation. She had
already abandoned Sidney once. Wu’s claim that she killed Sidney so she would
not abandon him again seems disingenuous given her absence from Sidney’s life
for much of his nine years.
Nonetheless, Wu was successful in mitigating her murder conviction to
manslaughter, and cultural convergence appears to have played a role in this
259.
Chiu, The Cultural Defense, supra note 6, at 1117 (citation omitted).
260.
286 Cal. Rptr. 868 (Ct. App. 1991). Helen was born and raised in China. She
came to the United States and conceived a child with Gary Wu in 1979. When Gary did not
propose marriage, Helen went back to Macau and left her newborn son, Sidney, with his
father because she did not want people in Macau to know that she had borne a baby out of
wedlock. Helen already had a daughter from a previous marriage. In 1989, at Gary’s urging,
Helen came back to the United States and married him in Las Vegas. Eight days after the
wedding, nine-year-old Sidney told his mother that the house where they were staying
belonged to Gary’s girlfriend, Rosemary. Helen told Sidney that she wanted to die and
asked him if he would go with her. When Sidney cried and hugged his mother, she cut the
cord off a window blind and strangled him. Helen then slashed her wrist and lay on the bed
next to her son. Gary returned several hours later and rushed Helen to the hospital where she
was revived. Volpp, (Mis)Identifying Culture, supra note 6, at 85–86.
261.
Volpp, (Mis)Identifying Culture, supra note 6, at 84.
262.
Id. at 84–85.
263.
Id. at 86. Interestingly, the California Supreme Court denied the
government’s petition for review, but then directed the Reporter of Decisions not to publish
the appellate court opinion in the Official Appellate Reports. People v. Wu, No. S024083,
1992 Cal. LEXIS 310, at *1(Cal. Jan. 23, 1992).
264.
Levine, supra note 2, at 65. Wu was sentenced to eleven years in prison. Id.;
see also Renteln, A Justification of the Cultural Defense Partial Excuse, supra note 6, at
474.
265.
Volpp, (Mis)Identifying Culture, supra note 6, at 85–86.
954
ARIZONA LAW REVIEW
[VOL. 49:911
success. Professor Juris C. Draguns, a clinical psychologist and expert in crosscultural psychology, testified at Wu’s trial about parent–child suicide by American
mothers living in Chicago in the 1920s.266 Draguns testified that these mothers did
not regard their infant children as separate children, but saw them as part of
themselves.267 Professor Leti Volpp notes that Draguns’ testimony “helped to
collapse cultural differences between ‘American’ and ‘Chinese’ culture.”268
Even though Wu’s plea for sympathy was not particularly persuasive, she
may have succeeded in reducing her murder conviction to manslaughter in part
because of gendered stereotypes about women as nurturing, caring, and altruistic
mothers.
C. Hmong Men Claiming “Marriage by Capture”
Another type of case involving a “cultural defense” involves Hmong men
charged with forcible rape who claim that because of the Hmong custom of zij paj
niam (“marriage by capture”), they thought the sex was consensual.269 Many such
cases start with an arrest and the filing of criminal charges, but “in the majority of
[these] cases, the prosecutor will reduce or drop charges in exchange for a plea.”270
For example, in 1985, a twenty-three-year-old Hmong man from Laos named
Kong Moua took a nineteen-year-old Hmong woman named Seng Xiong, also
from Laos, from her dormitory room at Fresno City College in Central California
to a close relative’s home, and there had sexual intercourse with her several times.
Xiong did not report the incident to the police right away, and later, when she did,
told them that she had not been sexually molested. Only much later did Xiong
report to the police that she had been raped.271
Charged with rape and kidnapping, Moua defended his actions as dictated
by the Hmong cultural practice of “marriage by capture.” Under this practice, a
266.
Id. at 90.
267.
Id.
268.
Id.
269.
RENTELN, supra note 4, at 127–28; Ly, supra note 6; George M. Scott, Jr., To
Catch or Not To Catch a Thief: A Case of Bride Theft Among the Lao Hmong Refugees in
Southern California, 7 ETHNIC GROUPS 137 (1988) (describing a case involving a Hmong
man from Orange County who abducted a Laotian girl from her home in San Diego, took
her to the apartment of one of his cousins in Orange County, and repeatedly forced her to
engage in sexual relations with him, all for the purpose of marrying the sixteen-year-old
girl).
270.
See Ly, supra note 6, at 480. Not all cases involving Hmong men charged
with rape result in a plea bargain and lowered charges because of cultural evidence. See,
e.g., State v. Lee, 494 N.W.2d 476 (Minn. 1993) (Hmong man found guilty of raping two
Hmong women despite testimony by the leader of a Hmong group suggesting that the
victims did not behave as if they had been raped); State v. Her, 510 N.W.2d 218 (Minn. Ct.
App. 1994) (despite defendant’s testimony that rape as it is understood in American culture
does not exist in Hmong culture, defendant was convicted of rape).
271.
For a complete account of this case, see Evans-Pritchard & Renteln, supra
note 6.
2007]
CULTURAL CONVERGENCE
955
Hmong man will take his bride-to-be from her home, bring her to his family home,
then force her to have sexual intercourse with him to consummate the marriage.272
Moua argued that given his cultural background, he honestly and
reasonably believed Xiong had consented to the intercourse.273 In most American
jurisdictions, an honest and reasonable belief in consent is an affirmative defense
to a charge of forcible rape.274 In light of Xiong’s failure to immediately report the
rape, prosecutors allowed Moua to plead guilty to false imprisonment for which he
was ordered to pay $1,000 in restitution and received three months in jail.275
The Moua case is often used as an example of a successful cultural
defense strategy. Instead of being convicted of two felonies (rape and kidnapping),
Moua was convicted of false imprisonment, a misdemeanor. Moua’s cultural claim
clearly contributed to his mitigated charge by making his claim of honest and
reasonable belief in consent more believable. However, plea bargains are not that
unusual in acquaintance rape cases in which the defendant claims he honestly and
reasonably believed his female friend consented. Particularly when there is little
evidence of force and the case boils down to a “he said” versus “she said” war of
credibility, the prosecution may believe that a plea bargain is the best way to
secure a conviction. In this country, we have a long history of giving male rape
defendants the benefit of the doubt when the victim is a friend or an intimate.276
Accordingly, the decision to allow a plea bargain in Kong Moua’s case may have
been more a function of contested views on the social harm of date rape and weak
evidence than cultural difference. Even though numerous studies suggest that
American women often say “no” when they mean “yes,”277 to openly acknowledge
this would contradict socially accepted norms held by a good segment of today’s
society. Moua’s “no” means “yes” argument was able to prevail perhaps because it
was dressed up as an exotic “cultural” claim.
Additionally, the Moua case is often presented as a case involving
sensitivity to cultural difference when it arguably perpetuated cultural racism.278
Hmong culture was depicted as barbaric, an imagined place where men kidnap the
women they want to marry, force them to have sexual intercourse against their
272.
Ly, supra note 6, at 478–80 (describing three Hmong marriage practices,
including marriage by capture).
273.
Id. at 484–86.
274.
JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW § 33.05, at 637–38 (4th
ed. 2006).
275.
Spencer Sherman, When Cultures Collide, 6 CAL. LAW. 32, 60 (Jan. 1986).
276.
Carissa Byrne Hessick, Violence Between Lovers, Strangers, and Friends, 85
WASH. U. L. REV. (forthcoming 2007).
277.
STEPHEN J. SCHULHOFER, UNWANTED SEX: THE CULTURE OF INTIMIDATION
AND THE FAILURE OF LAW 259–60 (1998).
278.
Lawrence, supra note 234, at 112 (noting that “cultural racism” involves
inferiorizing cultures, instead of race, i.e., making certain cultures appear inferior, deviant,
and inherently unassimilable); see also RAZACK, supra note 192, at 60 (explaining how
culturalized racism—attributing Black inferiority to cultural deficiency—allows society to
deny responsibility for racism); Volpp, supra note 3, at 1601 (explaining that under cultural
racism, “the culture of certain communities is posited as either inferior or incompatible with
the values of the dominant community”).
956
ARIZONA LAW REVIEW
[VOL. 49:911
will, and then the community endorses their marriage.279 The case reinforced
negative stereotypes about Asian men in general and Hmong men in particular as
foreigners with misogynistic patriarchal customs.280 The implicit assumption was
that in America, this type of behavior would not be tolerated, when in fact we
tolerate non-stranger rape—euphemistically called “date rape”—to a greater extent
than is often acknowledged. Cultural convergence provides a better explanation
than cultural sensitivity for the result in this and similar cases.
D. Black Men Who Successfully Argue “Black Rage”
A final example of cultural convergence involves African-American
defendants who successfully assert a “Black Rage” defense, a type of defense that
Anthony Alfieri calls a deviance defense because it relies on a racialized narrative
that reinforces assumptions about Blacks as deviant criminals.281 In Black Rage
Confronts the Law, Paul Harris explains the difference between “black rage” and
the “black rage defense”:
Black rage and the black rage defense are not synonymous.
Black rage, in its positive and negative aspects, is examined
insightfully by psychiatrists Price Cobbs and William Grier in their
widely discussed 1968 book Black Rage. The frustration and anger
of African Americans and their consequences for this country are
also articulated in James Badwin’s The Fire Next Time. Black rage
is eloquently expressed in the works of Alice Walker, Gloria
Naylor, and Walter Mosley. It is found in the poems of Gwendolyn
Bennett, in the music of KRS-One, in the essays of bell hooks, in
the speeches of Malcolm X, in the “Ten-Point Program” of the
Black Panther Party, and in the very history of African Americans.
The black rage defense is a legal strategy used in criminal
cases. It is not a simplistic environmental defense. The
overwhelming majority of African Americans who never commit
crimes and who lead productive lives against overwhelming odds
prove that poverty and racial oppression do not necessarily cause an
individual to resort to theft, drugs, and violence. But is cannot be
denied that there is a causal connection between environment and
crime. A black rage defense explores that connection in the context
of an individual defendant on trial.282
279.
See Volpp, supra note 3, at 1589–91 (“‘American’ is equated with progress:
the world of work, the college campus, while ‘Hmong’ is associated with barbarity and
tradition, in this case, rape.”).
280.
See Volpp, supra note 215, at 393 (critiquing the stereotypical view of Asian
immigrant communities as more misogynistic than Western communities).
281.
Anthony Alfieri, Defending Racial Violence, 95 COLUM. L. REV. 1301 (1995)
(arguing that using racialized narratives to defend young Black males charged with crimes
involving interracial violence harms the larger African-American community by reinforcing
negative stereotypes about young Black males as deviant, violent criminals).
282.
PAUL HARRIS, BLACK RAGE CONFRONTS THE LAW 2 (1997).
2007]
CULTURAL CONVERGENCE
957
While the Black Rage defense is not often asserted and rarely
successful,283 it has on occasion worked to the benefit of individual black
defendants. Consider the beating of truck driver Reginald Denny in South Central
Los Angeles after acquittal verdicts were announced in the first (state) trial of the
four officers charged with beating Rodney King. Denny, a Caucasian, was driving
his truck in South Central Los Angeles when the verdicts were announced and
pandemonium broke loose. The beating of Rodney King had been captured on
home video and many expected that the four white police officers responsible for
the beating would be convicted of assault. When the officers were instead
acquitted by a mostly white Simi Valley jury, Blacks and Latinos in South Central
Los Angeles reacted with anger and violence, setting fire to cars and businesses
and looting stores.284 When Denny drove his truck into an intersection where a
small angry crowd had gathered, he was pulled from his truck, kicked, and beaten
almost to death.285
Damian Monroe Williams and Henry Keith Watson, both AfricanAmerican, were charged with attempted murder, aggravated mayhem, torture, and
second-degree robbery arising from their attack on Reginald Denny. Their
attorneys did not deny that the beating took place, but argued that Williams and
Watson lacked the specific intent to kill Denny because they were acting as a result
of Black Rage and mob contagion.286 Apparently, the jury found this argument
persuasive. Williams was acquitted of the charged offenses and convicted of
simple mayhem and four misdemeanor assaults.287 Watson was acquitted of
attempted murder and convicted of misdemeanor assault. The jury deadlocked on
the other charges against Watson, leading to a mistrial on those counts.288
How does cultural convergence help explain the verdicts in the Reginald
Denny case?289 Because the criminal law does not recognize a “White Rage”
defense or any other race-based deviance defense, it is difficult to see any
convergence between minority and majority norms, let alone understand how such
a convergence of norms could explain the verdicts.
Although perhaps less obvious than in the cases involving Asian
immigrant men charged with murdering their wives and Hmong men charged with
rape, cultural convergence nonetheless may have played a role in the Reginald
283.
See, e.g., Kimberly M. Copp, Black Rage: The Illegitimacy of a Criminal
Defense, 29 J. MARSHALL L. REV. 205, 207 n.14 (1995) (discussing Colin Ferguson, the
Long Island railway shooter).
284.
See Lisa C. Ikemoto, Traces of the Master Narrative in the Story of African
American/Korean American Conflict: How We Constructed “Los Angeles,” 66 S. CAL. L.
REV. 1581 (1993).
285.
Laurie Becklund & Stephanie Chavez, Beaten Driver a Searing Image of
Mob Cruelty, L.A. TIMES, May 1, 1992, at A1.
286.
Dawn Weber, Videotape Evidence Key to Prosecution, Defense, L.A. DAILY
NEWS, July 26, 1993, at N14.
287.
Edward J. Boyer & John L. Mitchell, Attempted Murder Acquittal, Deadlock
Wind Up Denny Trial, L.A. TIMES, Oct. 21, 1993, at A1.
288.
Id.
289.
Although it would be more proper to refer to the case as the Williams and/or
Watson case, it has become popularly known as the Reginald Denny beating case.
958
ARIZONA LAW REVIEW
[VOL. 49:911
Denny case. The defense of “Black Rage” rests on the argument that after years of
racial discrimination and unequal treatment, a Black person who explodes in a fit
of anger should not be held responsible for his conduct because the environment in
which he lived contributed to his criminal acts.290 The defense of “mob contagion”
suggests that the defendant got caught up in the actions of the group and acted out
almost as if on auto-pilot. Both of these defenses, as used to explain and excuse the
actions of the young African American men on trial for the beating of Reginald
Denny, reinforced negative stereotypes about Blacks, in particular young Black
males, as dangerous, violent, criminals. Extensive social science literature supports
the association most people in the country make between Blackness and
criminality.291 The “Black-as-Criminal” stereotype is so deeply ingrained in our
subconscious that most of us must make a conscious effort to counter it or it will
control our initial gut feelings. The verdicts in the Reginald Denny beating case,
which essentially embraced the defense claims of “Black Rage” and “mob
contagion,” reflected and reinforced the “Black-as-Criminal” image. Williams and
Watson were partially excused for their actions because the jury believed these two
young Black men could not help acting in the deviant way they did.292
CONCLUSION
The cases I have examined are troubling on a number of fronts. First, in
each case, the defendant or defendants committed a crime of violence against an
innocent victim. Dong Lu Chen bludgeoned his wife to death; Fumiko Kimura and
Helen Wu killed their innocent children; Kong Moua had sexual intercourse with
an unwilling partner; and Damian Williams and Henry Keith Watson kicked and
beat Reginald Denny until he was almost dead.
Second, the cultural narratives told by each of these defendants seem to
have been persuasive to a large extent because they were either familiar refrains or
tapped into existing sexist or racist social norms. Dong Lu Chen’s outrage at
290.
HARRIS, supra note 282.
291.
See, e.g., Birt L. Duncan, Differential Social Perception and Attribution of
Intergroup Violence: Testing the Lower Limit of Stereotyping of Blacks, 34 J. PERSONALITY
& SOC. PSYCHOL. 590 (1976); H. Andrew Sagar & Janet Ward Schofield, Racial and
Behavioral Cues in Black and White Children’s Perceptions of Ambiguously Aggressive
Acts, 39 J. PERSONALITY & SOC. PSYCHOL. 590 (1980).
292.
In a 1995 law review article, Anthony Alfieri critiqued the defense strategy
used in Williams and Watson, arguing that criminal defense attorneys should not, as a matter
of ethics, use deviance defenses because of the harm such use causes the greater African
American community by reinforcing community beliefs that Blacks are violent, dangerous
criminals. Alfieri, supra note 281; see also Muneer I. Ahmad, The Ethics of Narrative, 11
AM. U. J. GENDER SOC. POL’Y & L. 117 (2003) (urging lawyers to think carefully about the
broader consequences before employing racist, sexist, and anti-gay narratives to benefit the
client). Abbe Smith and others have countered that criminal defense attorneys owe an
ethical duty to their clients to zealously represent their interests and their interests alone.
Abbe Smith, Burdening the Least of Us: “Race-Conscious” Ethics in Criminal Defense, 77
TEX. L. REV. 1585, 1595 (1999). Smith explains that a criminal defense attorney would
violate the rules of professional responsibility if he or she were to put the greater African
American community’s interests ahead of his or her own client’s interest in being found not
guilty of the charged offense. Id.
2007]
CULTURAL CONVERGENCE
959
discovering his wife’s infidelity may have made sense to Judge Pincus not only
because American men have been similarly outraged, but because of stereotypes
about patriarchal Chinese men and their familial relations. Fumiko Kimura’s story
of despair and hopelessness was persuasive perhaps because it reinforced the
image of the emotionally weak woman completely dependent on her husband for
her happiness. Kong Moua’s claim that he honestly and reasonably believed Seng
Xiong was consenting to sexual intercourse may have persuaded the prosecutor to
drop the rape and kidnapping charges against him not only because of the he
said/she said nature of his story, but also because doing so reinforced stereotypes
about Asian men as barbaric misogynists. Damian Williams and Henry Keith
Watson’s claim that they were caught up in the mob mentality of the moment and
could not help beating Reginald Denny made sense to the jury because it
reinforced deeply-ingrained stereotypes about young Black males as violent,
deviant criminals. That these cultural narratives were successful when the vast
majority of cultural narratives are rejected in courtrooms across the country
suggests that the persuasiveness of a defendant’s cultural claims may turn on the
extent to which the claims converge with dominant subtexts of racism and sexism.
In cultural defense cases, it is important for attorneys to be aware of and
to counter negative and possibly incorrect stereotypes. The prosecutor in the Dong
Lu Chen case could have called an expert witness to counter Burton Pasternak’s
testimony. Instead he did nothing on the assumption that the judge would not
believe Pasternak’s assertions. The Assistant District Attorney who tried the Chen
case explained, “[i]n our wildest imaginations, we couldn’t conjure up a scenario
where the judge would believe that anthropological hocus-pocus.”293 The
prosecutor in the Kong Moua case could have presented evidence that the Hmong
practice of marriage by capture is no longer widely accepted by the Hmong
community in America. The Hmong District of the Christian and Missionary
Alliance, for example, has officially denounced marriage by capture.294 The
prosecutor in Williams and Watson could have called expert witnesses to testify
about the prevalence of the “Black-as-Criminal” stereotype and asked the judge to
instruct the jurors that it is inappropriate to rely on racial stereotypes when
deciding whether to acquit or convict.295 By not countering the cultural evidence
presented, these prosecutors unwittingly assisted the other side.
When minority and majority cultural norms converge, the minority
offender may secure an acquittal or light treatment while reinforcing negative
stereotypes about his entire community. By enabling us to understand these
double-edged dynamics as well as the selective receptivity of the law towards
certain cultural defenses, cultural convergence theory offers a starting point for
scholars and policymakers concerned with the rule of law in an increasingly
diverse society.
293.
Dick Polman, When is Cultural Difference a Legal Defense? Immigrants’
Native Traditions Clash With U.S. Law, SEATTLE TIMES, July 12, 1989, at A1.
294.
See Ly, supra note 6, at 492.
295.
For an example of such a limiting instruction, see Lee, supra note 228, at
481–82.